Csillag v Woollahra Council

[2011] NSWLEC 17

Land and Environment Court

New South Wales

Medium Neutral Citation:

Csillag v Woollahra Council [2011] NSWLEC 17

Hearing dates:

11/5/2010, 12/5/2010

Decision date:

21 February 2011

Before:

Craig J

Decision:

The orders that I make are therefore as follows:

1. In accordance with s 25B(1)(a) of the Land and Environment Court Act 1979 (the Court Act), the whole of development consent no. 256/2008/1 granted by the first respondent on 6 July 2009 is suspended until further order made in accordance with s 25C of the Court Act.

2. Direct the parties to bring in short minutes of order to give effect to the terms of this judgment, including:

i. the requirement for re-notification and advertising of development application no. 256/2008/1 in accordance with Woollahra Development Control Plan for Advertising and Notification of Development Applications and Applications to Modify Development Consents;

ii. the further consideration of that application by the first respondent in accordance with s 103 of the Environmental Planning and Assessment Act 1979 following receipt of any submissions received in consequence of notification and advertisement of the development application; and

iii. the further listing of the matter before the Court in order to consider the making of an order under s 25C of the Court Act.3. Stand over the proceedings to 9:30 am on Friday 25 February 2011 for the purpose of considering the short minutes of order prepared in accordance with order 2 and, if appropriate, to make orders in accordance with those short minutes.

4. Order that the second respondent pay one quarter of the applicants' costs of the proceedings to date.

5. Exhibits may be returned.

Catchwords:

JUDICIAL REVIEW:- notification and advertisement of development application - alterations and additions to a penthouse apartment in an existing building - correct identification of land to which development application related - development site with dual street frontages and assigned addresses - multiple separate buildings located on development site - sufficiency of address identifying only an apartment number and one of the recorded street addresses - Woollahra Development Control Plan for Advertising and Notification of Development Applications and Applications to Modify Development Consents - purposive construction of the DCP - material accompanying notification letters sufficient to identify location of proposed development - single street address and apartment number insufficient to meet the requirements for advertising - development consent suspended under s 25B of the Land and Environment Court Act 1979

COSTS:- validity of development consent - one of two grounds of invalidity abandoned during the course of the hearing - significant evidence and preparation directed to the abandoned ground - Uniform Civil Procedure Rule 42.1 - successful applicant entitled to 25 per cent of costs

Legislation Cited:

Woollahra Development Control Plan for Advertising and Notification of Development Applications and Applications to Modify Development Consents
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Woollahra Local Environmental Plan 1995

Cases Cited:

Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602
Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; (2007) 150 LGERA 333
Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207 at [58])
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Proprietors of SP 13318 and 13555 v Lavender View Regency Pty Ltd (1997) LGERA 337
Scurr v Brisbane City Council [1973] HCA 39 (1973) 133 CLR 242
Wilson v State Rail Authority of New South Wales [2010] NSWCA 198
Woollahra Residential Development Control Plan 2003

Category:

Principal judgment

Parties:

Lila Csillag (First applicant)
Andrew James Csillag (Second applicant)
Woollahra Municipal Council (First Respondent)
Geoffrey David Stein and Phillip Filler as executors of the Estate of the Late Grace Grunberg (Second respondents)
Diana Saher and Abdul Houssein Moussa Beydoun (Third respondents)

Representation:

Counsel:
T T To (Applicant)
I J Hemmings (First respondent)
Solicitors:
Herring & Associates Lawyers (Applicant)
Wilshire Webb Staunton Beattie (First respondent)

File Number(s):

40757 of 2009

Judgment

1. HIS HONOUR: On 6 July 2009, the first respondent, Woollahra Municipal Council ( the Council ), granted development consent for alterations and additions to the penthouse of an apartment building at Double Bay. The building is part of what is known as St Neots Estate. The penthouse to which the alterations and additions were proposed is known as apartment 15 and the address of the land upon which the apartment building is located is stated on the architectural drawings that were the subject of the Council's consent as being 335 New South Head Road. It is the statement of that address that lies at the heart of these proceedings.

1. The applicants seek a declaration that the consent granted by the Council on 6 July 2009 is invalid and of no effect. In seeking this relief, they initially joined not only the Council but also the executors of the Estate of the former registered proprietor of apartment 15 as second respondent together with the persons who had contracted to buy apartment 15 at the time at which the proceedings were commenced as third respondents. Ultimately, the Council was the only active respondent to the proceedings, the second respondent having filed a submitting appearance, save as to costs, and the proceedings having been discontinued against the third respondents.

1. As the case was finally argued before me, there was a single basis upon which the applicants relied to ground the relief that they sought. Simply put, they claimed that both the public notification and advertisement of the development application by the Council, prior to determination of the development application, was inadequate. The inadequacy identified is an incomplete identification of the land upon which the proposed development was to be undertaken. The lack of a complete address resulted, so it is claimed, in failure to comply with the Council's adopted development control plan known as Woollahra Development Control Plan for Advertising and Notification of Development Applications and Applications to Modify Development Consents ( the DCP ). That failure, so it was submitted, amounted to a breach of s 79A(2) of the Environmental Planning and Assessment Act 1979 ( the EPA Act ) with the consequence that the development consent is invalid.

1. The factual basis for these submissions will require elaboration. However, it is sufficient for present purposes to record that the site on which the building containing apartment 15 stands has frontage both to New South Head Road and to Edgecliff Road, Double Bay. Affixed to the gatepost of the site at its frontage to Edgecliff Road is the number "353". It is the failure to refer to this address that founds the applicants' claim.

The site and the development application

1. The site on which the building that is the subject of the development application stands is substantial. It has an area of about 4,299m . It is irregularly shaped with two, relatively narrow, separate frontages to New South Head Road, Double Bay and with a rear or southern frontage of about 7m to Edgecliff Road. The site is said to be a consolidation of three former lots. The rear or southern section of the site falls steeply from Edgecliff Road, although this section of the site is, in turn, elevated above the site's northern section closer to New South Head Road.

1. There are three buildings located upon the site. The northern section of the site contains six two storey townhouses while the central section of the site is occupied by a three storey residential flat building. Towards the southern section of the site is a seven storey residential flat building ( the tower building ). Apartment 15 comprises the penthouse of the tower building.

1. The Council maintains property records and property identification systems on a computer database. That database records the address of apartment 15 for rating purposes as being 15/325 New South Head Road, Double Bay. Apartment 15 is lot 15 in Strata Plan 58002. The Council's database for the common property held by the owners of Strata Plan 58002 shows the address for that property also to be 325 New South Head Road, Double Bay. Further, a printout from the Council's property database indicates the Double Bay address for proprietors of lots in Strata Plan 58002 to be their respective apartment numbers at either 325 or 335 New South Head Road, Double Bay. It seems that the western arm of the site that has frontage to New South Head Road is assigned the street number 325, while the eastern arm of the site fronting New South Head Road has assigned to it the number 335.

1. At the request of the applicant I carried out a site inspection in company with the legal representatives of the parties. This, so it was submitted, was to assist me in understanding the evidence given as to the separation of the tower building from New South Head Road, the topographical features of the site, the proximity of the tower building to Edgecliff Road and the appearance of buildings on the site from that road.

1. The site inspection revealed, as recorded in the transcript, that when viewed from Edgecliff Road, there was a gated entry to the site, apparently providing access to site residents and vehicular access to the tower building. The number "353" is clearly visible and is fixed to the post from which vehicular access gates are swung. The tower building is the only building apparent on the site when viewed from Edgecliff Road.

1. From the gate at the address 325 New South Head Road, being the location of the western arm of the site boundary to that road, all three buildings located on the site are clearly visible. From the forecourt to the property numbered 335 New South Head Road, being the eastern arm of the site having frontage to that road, the townhouses together with the tower building are clearly visible.

1. The printout from the Council's property database for each of apartment 15 and the common property must be noticed. In addition to identifying the street address of each, being the address which was said to be the subject of rate assessment, the following is recorded:

"Heritage item

LEP Heritage Item AKA 353 Edgecliff

The land to which this certificate relates, being the lot or one of the lots described in the corresponding application, is shown in the Council's records as being situated at the street address described on page 1 of this certificate. That street address is or contains, or is part of, a heritage item listed in a schedule in the local environmental plan (as amended from time to time) that applies to the land. That plan describes the street address as being 353 Edgecliff Road, Double Bay."

1. Woollahra Local Environmental Plan 1995 ( the LEP ) is the principal planning instrument controlling development upon the site. Schedule 3 to the LEP lists heritage items in respect of which special controls are imposed. Included in that Schedule under the street address "353 Edgecliff Road Edgecliff" is a Cook Pine. This is the heritage item identified on the printout from the property data pertaining both to apartment 15 and the common property of Strata Plan 58002.

1. The development application in respect of which the impugned development consent was granted was an application lodged with the Council on 7 May 2008. The development application form described the property that was the subject of the application as "335 New South Head Road Double Bay". At some time subsequent to preparation of the development application form by its author, the following words have been added to the address "AKA - 325 NSHRD - D. Bay".

1. The development application was accompanied by a statement of environmental effects. The opening paragraph of that document commences as follows:

" Details of the Proposal

The proposed project at 335 New South Head Road/353 Edgecliff Road, Double Bay consists of an Alterations and Additions [sic] to the top level of an existing apartment block."

1. The architectural plans lodged with the application and ultimately made the subject of development consent describe the address of the property in their title block as -

"Apt 15, St Neots Estate 335 New South Head Road Double Bay NSW".

1. Evidence was given on behalf of the Council as to the maintenance of property records identification on the computer database. Apart from the matters to which I have earlier referred it was indicated that if one portal known as E-View Mapping was interrogated with the address 353 Edgecliff Road, no property outline was provided. If the system was interrogated by that same address through the other available portal, namely that known as "Authority", records for properties with the address 335 New South Head Road, were generated.

Notices and advertisement

1. By letter dated 21 May 2008 the Council wrote to a large number of landholders whose properties or enjoyment of them might potentially be affected by the alterations and additions then proposed in the development application for apartment 15. Those notified included the proprietors of lots in the Strata Plan which pertained to the site. The letter identified the property that was the subject of the development application as being "15/325 New South Head Road Double Bay."

1. Attached to the letter were five A4 copies of architectural plans that accompanied the development application. One such plan was a site plan on which the boundaries of the site were marked and within which were located the three buildings erected on the site. An outline of buildings on adjoining sites was also indicated on that plan. Each of the tower building and outline of the townhouse development within the site had marked on them "No. 335" and beneath which was a relative level for those buildings. The three storey residential flat building had the number 325 marked on it. No indication was given on the site plan as to which of the three buildings was the subject of the application. The letter described the proposed development as being "(a)lterations to unit 15 including a new roof addition and terrace." In the title block to each of the A4 plans accompanying the letter was reference to "15/335 New South Head Road" in the form that I have earlier described.

1. A page under the banner of the Council was published in the Wentworth Courier newspaper on 21 May 2008. Among the items that appeared under that banner was a list of new development applications. Included in the list was reference to the development application number assigned to the subject development application together with the address "15/325 New South Head Road Double Bay". The development proposed was described in the same manner as that which appeared in the letter sent to a number of residents.

1. Submissions were received in response to this notification and advertisement process. As a result of a communication by an unnamed objector, the Council officer responsible for the matter was alerted to the fact that the building on the site was also known as 335 New South Head Road, albeit that this was the address that had been provided to the Council on the development application form and was the address appearing on the title block to the plans accompanying the development application. When this fact was drawn to the attention of the Council staff, a decision was made to re-advertise and renotify the development application.

1. On 18 June 2008 a notification letter, the substance of which was identical to that contained in the letter of 21 May 2008, was sent by the Council to a large number of people, including those who had previously been notified. However, this letter described the property as being "15/335 New South Head Road Double Bay". It also attached the same A4 plans copied from the development application plans except on this occasion the site plan had been marked by circling, in the form of clouding, the tower building. As had previously been the case, the location plan had also marked the boundaries of the site showing it as having frontage to both New South Head Road and Edgecliff Road. Notice of the application with its amended address was published in the Wentworth Courier on the same day.

1. Many months later a development application assessment report was prepared by the senior assessment officer within the Council responsible for processing the development application. In the title box to his report property details were provided. These commenced with the following description:

"15/335 (AKA 15/325) New South Head Rd (AKA 15/353 Edgecliff Road, Double Bay".

1. Development consent was granted on 6 July 2009 ( the consent ). The notice of determination of the development application given in accordance with s 81(1)(a) of the Act described the land to which the development consent applied. It did so in precisely the same terms as the property details were given in the application assessment report, that is with the "AKA" alternatives following reference to 15/335 New South Head Road.

The legal obligation to notify and advertise

1. The applicants found their case for declaratory relief on the basis that the development consent purportedly granted on 6 July 2009 was a consent granted in breach of the Act. The breach alleged is of s 79A. Subsection (2) of that section provides as follows:

"(2) A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application."

1. It is accepted by the Council that the DCP is a development control plan that is engaged by the provisions of s 79A(2). Further, the Council accepts that the development application in question was for "specified development" within the meaning of the subsection.

1. Section 3 of the DCP contains provisions relating to the advertising of a development application. Clause 3.1.1 requires, subject to an exception not presently relevant, that the Council must advertise a development application to which the DCP applies "for public inspection before it determines that application". Clause 3.4.1 stipulates the minimum content of an advertisement. There are ten such requirements, the first of which is expressed as follows:

"(a) the address of the application site, including where available the name of the building and the name of the business conducted from the building; ... ".

1. By cl 3.3, advertising of a development application is to occur once in a newspaper circulating at least once weekly in the Woollahra local government area.

1. Section 4 of the DCP makes provision for the notification of development applications. By cl 4.1, the Council is required to "provide notification of a development application" to which the DCP applies before determining that application. The expressed exceptions to that requirement are not presently relevant. Of present relevance, notification is required to be given by letter (section 4.3) and by a site notice required by cl 4.5.

1. Cl 4.4.2 stipulates the contents of the notification letter that is to be given to owners of adjoining and neighbouring land. There are ten matters that, as a minimum, must be included, the first of which is -

"(a) the address of the application site, including where available the name of the building and the name of the business conducted from the building, ... ".

1. A notice is said to have been affixed to the site in fulfilment of the requirements of cl 4.5 of the LEP. There is no evidence to indicate where on the site that notice was placed. However, as I understand the submission of the parties, the terms of this notice are not relied upon for the purpose of their respective cases.

1. As will be apparent from the requirements of the DCP that I have quoted, the contents of both the advertisement and notification letter is that they contain the address of "the application site". The expression "application site" is defined in Schedule 1 to the DCP to mean "the land to which an application relates."

Purpose of notification and advertisement

1. By requiring the advertising and notification of development applications, the DCP is giving effect to an important object of the EPA Act. That object, as expressed in s 5(c), is "to provide increased opportunity for public involvement and participation in environmental planning and assessment." Relevantly, s 79A(2) gives statutory force to the DCP by mandating notification and advertisement of a development application in accordance with its provisions ( Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207 at [58]).

1. The purpose achieved by giving effect to the legislative object is twofold. First, it affords a form of procedural fairness by providing an opportunity to those who have an interest in or who may be affected by proposed development to learn of its detail before any decision is made. Secondly, it affords the opportunity to improve the process of decision making by enabling the consent authority to make a decision, fully informed of the potential consequences of development as perceived by the community.

1. This important statutory objective would be frustrated if the notification and advertisement of a given development application was inadequate to identify the place at which the proposed development was to be undertaken. Apt to this observation are the remarks of Stephen J in Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242 where in addressing the adequacy of an advertisement published in respect of proposed development, his Honour said (at 252):

" ... unless adequate information is contained in advertisements not only will effective objection be rendered difficult but the very need to object may not be sufficiently appreciated; ... ".

1. It is with this understanding of purpose that the requirements of the DCP for advertising and notification must be understood. So to indicate is not to suggest that the language of the DCP in identifying its requirements is to be ignored and the words used given a meaning which they do not reasonably bear. Nonetheless, the purpose intended to be served by the provisions and their context must be at the forefront of consideration when seeking to understand the meaning of the words used ( Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] - [70]; Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [12] - [13]).

The address necessary to identify the land to which the application relates

1. As I have earlier recorded, the requirement of the DCP for both the advertisement and notification letters is that the address of the "application site" must be stated in each of them. By applying the definition contained in Schedule 1 of "application site" to the requirement, the address of "the land to which (the) application relates" must be stated in each of the advertisement and notification letters. However, the requirement so expressed provides no ready answer in the present context. What is the address of the land to which the application for alterations and additions to apartment 15 relates? Taking a purposive approach, the answer must surely be that address which will, within reason and founded upon objective criterion, best identify the land for those who may be interested to know where "apartment 15/335 New South Head Road Double Bay" is located so as to understand the possible impact of the alterations, including new roof addition and terrace, to be undertaken in apartment 15.

1. Ordinarily, the address of the land identified in the development application would be expected to suffice. For a site with a single street frontage and with a single known address, the statement of that address in the notification or advertisement would comply with the requirement. However, a street address identified in a development application may, for example, be misstated, a fact that is made apparent by reference to accompanying documents, including plans.

1. By way of example, assume that a development application form nominated the site of proposed development as 1 Smith Street, Urbanville. Notification and advertisement using that address as the address of the land to which the application related could hardly be seen to meet a mandatory requirement for advertisement and notification if material accompanying the development application, including plans showing the site of the proposed development, indicated the correct address to be 101 Smith Street, Urbanville. It is by reference to this example that I have indicated the need for objective data or criterion to be utilised when determining the address of the land to which a development application relates.

1. More difficult questions arise, as in the present case, where the address given does accord with an address recognised by the consent authority as being the address of the site for a statutory purpose. As I have earlier indicated, the rating address for apartment 15 would seem to be 325 New South Head Road, notwithstanding the fact that the development application itself nominated the address as 335 New South Head Road. However, this street numbering would appear to apply to all three buildings located on the site. According to the printout from the Council's database, lot holders in Strata Plan 58002 seem to interchange between 325 and 335 as being the relevant street address.

1. Adding to the complexity of identification are two further factors. First is the fact that the street number affixed to the Edgecliff Road entry to the site is 353, clearly intending that to be an Edgecliff Road address. Secondly, the Council's own records recognise this Edgecliff Road address. So much is apparent from the Schedule of heritage items to the LEP as I have earlier identified. Moreover, the address "353 Edgecliff Road" is recognised in the Council's database. The fact that when that database is interrogated by reference to that address there is a default reference to the New South Head Road address of the property does not seem to me to detract from that recognition. No evidence was led for the Council to suggest that the Edgecliff Road address of the site was not a street address assigned by it or which otherwise did not enjoy any public recognition.

1. For these reasons, I have concluded that the provisions of the DCP pertaining to notification and advertisement are to be interpreted in the purposive manner that I have earlier indicated. The information either advertised or notified must be sufficient in its identification of the land to which the development application pertaining to apartment 15 relates so that those reading the advertisement or notification letter could reasonably understand where on this site the development was contemplated. Because both notification and advertisement were mandated by the DCP, it is necessary to consider whether the requirements of the DCP had been met for each of them.

Notification

1. I have earlier referred to the requirements of Section 4.4.2 of the DCP identifying the minimum content of the notification letters. While the first item so identified is the address of the application site, it is possible that information necessary to meet the other nine requirements of Section 4.4.2 cure any deficiency in the statement of property address at the head of the letter. Provided other information was not apt to create confusion or was not internally inconsistent, all material notified is appropriate to be considered in its totality to ascertain whether each of the ten requirements of this Section had been fulfilled. Thus, if a plan accompanying the notification letter sufficiently identified the location of apartment 15, any deficiency in the statement of property address at the head of the letter would be cured.

1. The first letter of notification dated 21 May referred to apartment 15 as the property which was the subject of the development application and nominated the address as being 325 New South Head Road Double Bay. The site plan accompanying the development application showed all three buildings on the site. Importantly, the only building marked with the number 325 was the three storey residential flat building located in the centre of the site. As I have earlier indicated, both the footprint of the townhouse development located towards the northern end of the site and the tower building, located on the southern section of the site, have the street numbers 335 superimposed upon them. As I have also said, the title box to the architectural plans showed the address of apartment 15 to be 335 New South Head Road. The section drawing and elevation drawings in A4 size accompanying the letter of notification served only to confuse rather than enlighten the reader of the letter as to the address or location of the building containing apartment 15.

1. While the notification letter invited viewing of the development application, including the plans accompanying it, at the Council's offices, the purpose of the notification letter is not served, so it seems to me, unless the recipient is afforded the means of identifying the location of the intended development from the documents received. The recipient of a notice located to the south of the site and being aware of its topography may have had little concern with any change to the three storey residential flat building or to the townhouse development located to the centre of the site. It is no answer to suggest that disparity between the property address shown at the head of the letter and that shown in the title block to those plans accompanying the letter would be sufficient to encourage the reader to inspect documents in accordance with the invitation contained in the letter. The purpose sought to be achieved by section 4.4.2 of the DCP is not fulfilled if confusion of that kind arises.

1. My conclusion is different in respect of the second notification letter that was sent on 18 June 2008. It will be remembered from my earlier recitation of fact that the letter of 18 June identified the address of the property that was the subject of the development application as being 15/335 New South Head Road Double Bay. The same site plan, section drawing and elevation as had accompanied the earlier notification letter also accompanied that letter. However, the site plan had circled by clouding the tower building in which apartment 15 was located. On this occasion there was no disparity between the property address given and the address on title blocks to the plans. Moreover, the clouding of the building containing apartment 15 on the site plan had a twofold consequence. First, it reasonably indicated to the reader which of the two buildings having the number "335" superimposed upon them was the one in which development was to take place. Secondly, it identified to those who may otherwise have known the property as 353 Edgecliff Road that this was the building in which development was proposed, albeit with a New South Head Road address.

1. It was submitted on behalf of the applicant that receipt of the two notification letters by those to whom they were addressed would serve to confuse, with the result that notification had not been given in accordance with the requirements of the DCP. As I understood the submission, its thrust was that the recipients of these letters would have compared the two, recognised that the same plans were attached to each letter but with different addresses identified. I do not agree with this submission. Such is the combined effect of the changes within the second notification letter and its accompanying documents that the address for proposed alterations and additions to apartment 15 was made sufficiently clear so as to attract the attention of those with a potential interest in the development.

1. In summary, the requirement for notification of the development by material identifying the location on the site that was the subject of the application was met by the terms of the notification letter dated 18 June 2008.

Advertisement

1. As would be apparent from my earlier quotation of the contents of advertisements placed in the Wentworth Courier newspaper on 21 May 2008 and again on 18 June 2008, these advertisements were cryptic indeed. Importantly, by way of comparison with the notification letters, there was no accompanying material so as to inform the reader of each advertisement of any matter pertaining to the proposed development other than the contents of the advertisement itself.

1. Thus, in the context of my earlier discussion, the identification of the address of the land to which the development application related becomes critical. Whether that address is stated to be 325 New South Head Road or 335 New South Head Road, it is, to my mind, an insufficient description of the address so as to identify the land to which the proposed alteration to apartment 15 related.

1. The factors that inform this conclusion are as follows:

(i) where, as here, there are three separate buildings of different configuration located on the site, a proposal to carry out development in only one of them, with no work constituting development involving any other building, requires identification of that part of the land on which the building stands which is to be altered as part of the address to be given: at least reference to that building as part of the address would, in present circumstances, be required;

(ii) by any objective standard, the site had the street address of 353 Edgecliff Road, a fact recognised in the Council's own records;

(iii) the topography of the site is such that the tower building is the only building on the site that is visible when viewed from Edgecliff Road;

(iv) the street number 353 is affixed to the entrance gate to the site with both resident access and vehicular access for residents available to the building from Edgecliff Road;

(v) the statement of environmental effects accompanying the development application identified the site as being "335 New South Head Road/353 Edgecliff Road";

(vi) the development application assessment report prepared by Council's staff identified the property as being "also known as" 353 Edgecliff Road; and

(vi) the form of notification development consent itself described the property to which the application related as being apartment 15 on land "also known as" 353 Edgecliff Road.

1. Mr I Hemmings, who appeared as counsel for the Council acknowledged that the site was also known as 353 Edgecliff Road but suggested that the DCP would not extend to requiring inclusion of site address by which it might be known otherwise than in some official recording of the address such as the information contained in the Council's database. I can accept that if a given site or property has a single address that is recorded by a Council for rating purposes, the fact that a small section of the community identifies the site by a means other than its "official" address would not ordinarily require that the latter be the subject of advertisement required by a plan such as the DCP. However, when the Council's own records recognise two addresses by which a particular site is recorded and where that site is large, as is the present site, containing several separate buildings, the critical one of which is located proximate to the "otherwise known as" address, then use of the latter, so it seems to me, is important in order to identify the address of the land to which the particular development application relates.

1. Objectively judged, the statement in the advertisements of the address of the land to which the proposed development of apartment 15 related as being either 325 of 335 New South Head Road was not sufficient to draw attention of readers of those advertisements to the land to which that application related. The reasonable reader of the advertisement living in a property located to the south of the site would not have been alerted to the proposal to alter the tower building. The purpose to be served by advertisement required by the DCP had not been fulfilled.

1. Reference was made on behalf of the Council to the decision of Talbot J in Proprietors of SP 13318 and 13555 v Lavender View Regency Pty Ltd and North Sydney Council (1997) LGERA 337. Although in the particular factual circumstances then being considered by his Honour, the omission of an address that formed part of a development site was ultimately determined not to be fatal, in itself, to the challenged development consent, the principle enunciated by his Honour is appropriate to the present circumstances. As his Honour observed [at 350]:

"A notice which omits a critical part of the description of the property cannot be regarded as a notice which gives the recipient a reasonable opportunity to participate in the process of consideration and determination of a development application."

Breach of the Act

1. The failure to advertise the development intended for apartment 15 in accordance with the requirements of the DCP amounted to a breach of that Plan. It will be remembered from my earlier reference to its provisions that cl 3.1.1 provided that "the Council must advertise a development application to which this plan applies". The failure so to do was not only a breach of the DCP itself but resulted in a breach of s 79A(2) of the Act.

1. The requirement for advertisement of development applications in accordance with the DCP is the means by which the Council has identified the manner in which "procedural fairness" is to be afforded to those whose interests may potentially be affected by the development in contemplation. Failure to adhere to the procedures ordained by the DCP for this purpose are capable of constituting a failure to accord procedural fairness to those whose interests are liable to affectation by the grant of development consent ( Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602 per Brennan CJ, Dawson and Toohey JJ at 609).

1. I accept that not every failure to comply with the detailed requirements of the DCP pertaining to advertisement will necessarily lead to invalidity of a subsequently granted development consent ( Lesnewski at [59]). However, failure to indicate in the advertisement the address of the land to which the application relates is to my mind so fundamental that, save for application of the statutory provisions to which I will next turn, the development consent granted on 6 July 2009 would otherwise be invalid.

Division 3 of Pt 3 of the Land and Environment Court Act 1979

1. My determination that the development consent granted on 6 July 2009 would otherwise be invalid necessarily engages the provisions of s 25E of the Land and Environment Court Act 1979 ( the Court Act ). That section provides as follows:

" 25E Duty of Court

It is the duty of the Court to consider making an order under this Division instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part."

The Division to which the section refers is Div 3 of Pt 3 of the Court Act. The provisions of this Division must be considered in all cases where the determination of invalidity of a development consent would otherwise be made ( Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; (2007) 150 LGERA 333).

1. As the matter was finally argued by the present applicant, the only basis upon which invalidity is sought to be sustained is by reference to the notification and advertising requirements of the DCP. It is only in respect of the latter that a breach of the Act has been established. Thus, any potential invalidity arising from a step "preliminary to the granting of a development consent" is quintessentially a basis of invalidity attracting the remedial and beneficial provisions of Div 3 of Pt 3: see s 25A(2).

1. Without suggesting that alterations and additions proposed for apartment 15 can have no external impact, given the existence and location of the tower building it would appear that impacts, if any, would be limited to relatively few people. Moreover, the development is, by any objective standard, relatively small in its scope of work and cost. In these circumstances, I consider it appropriate to suspend the operation of the consent granted on 6 July 2009 in accordance with s 25B(1) of the Court Act. Otherwise, the processes provided for in Div 3 of Pt 3 of the Court Act should take their course.

1. Further advertisement and notification of the development application will be required, including identification of the building containing apartment 15 and its alternate address as being 353 Edgecliff Road Double Bay. The Council will be required to consider any response to the advertisement and notification of the development consent with a capacity to act thereafter in accordance with the provisions of s103(3) of the EPA Act. It is appropriate that the parties, in consultation, set out in short minutes of order, detail of the steps necessary to be taken and their timing, culminating in the opportunity for the Court to exercise the power available to it to make an order under either subsection (1) or subsection (2) of s 25C of the Court Act.

Costs

1. At the conclusion of their submissions, each counsel for the respective parties argued the question of costs depending upon the possible outcome of these proceedings. Those submissions addressed on outcome consistent with that which I have reached, namely a determination of breach but suspension of the consent under Div 3 of Pt 3 of the Court Act.

1. By operation of UCPR 42.1, costs should follow the event "unless it appears to the court that some other order should be made". The "event" relevant for present purposes is the establishment of breach by the applicant. Notwithstanding this "event" I have determined that costs should not follow in favour of the applicant.

1. As the applicant's case was pleaded in its amended points of claim and as its case was opened before me, there were two bases upon which invalidity of the development consent were propounded. Obviously enough, the first basis was founded upon breach of the DCP. The second basis of claim alleged a failure on the part of the Council to consider the loss of views occasioned by the proposed additions to apartment 15. This failure was said to constitute a breach of s 79C of the EPA Act both generally and by reason of a failure to consider certain provisions of Woollahra Residential Development Control Plan 2003.

1. Both by its filed evidence and outline opening submissions prepared in accordance with the Court's practice requirements, the Council had devoted considerable resources to this second ground of claimed invalidity. Not only did the Council prepare evidence by Council officers responsible for assessment of the development application directed to this issue, but by reason of statements attributed by the applicants to Council staff, an issue of fact was addressed in affidavit evidence that would otherwise have required resolution. It was only after the luncheon adjournment on the first day of hearing that the applicants' counsel advised the Court that this second ground of challenge would no longer be maintained. Furthermore, it was only then that the Council learned of the abandonment of the claim.

1. While it is not possible to be precise as to the division of time between the two claimed bases of invalidity, it was apparent both from the opening of the case on behalf of the applicants, the opening written submissions of the parties and the affidavit evidence read before the second issue was abandoned that the Council had incurred considerable costs on the issue. Based upon these matters it seems to me that a substantial reduction in the costs to which the applicant might otherwise be entitled should be made.

1. Making a global assessment of this material and the time otherwise occupied in the hearing both before and after the issue was abandoned, I am of the opinion that the applicants should be entitled to only 25 percent of its costs.

Orders

1. The orders that I make are therefore as follows:

1. In accordance with s 25B(1)(a) of the Land and Environment Court Act 1979 ( the Court Act ), the whole of development consent no. 256/2008/1 granted by the first respondent on 6 July 2009 is suspended until further order made in accordance with s 25C of the Court Act.

2. Direct the parties to bring in short minutes of order to give effect to the terms of this judgment, including:

i. the requirement for re-notification and advertising of development application no. 256/2008/1 in accordance with Woollahra Development Control Plan for Advertising and Notification of Development Applications and Applications to Modify Development Consents;

ii. the further consideration of that application by the first respondent in accordance with s 103 of the Environmental Planning and Assessment Act 1979 following receipt of any submissions received in consequence of notification and advertisement of the development application; and

iii. the further listing of the matter before the Court in order to consider the making of an order under s 25C of the Court Act.3. Stand over the proceedings to 9:30 am on Friday 25 February 2011 for the purpose of considering the short minutes of order prepared in accordance with order 2 and, if appropriate, to make orders in accordance with those short minutes.

4. Order that the second respondent pay one quarter of the applicants' costs of the proceedings to date.

5. Exhibits may be returned.

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Decision last updated: 25 February 2011