Emeritus Pty Ltd v South Sydney Council

Emeritus Pty Ltd (the appellant) appealed to the New South Wales Court of Appeal against a decision of the Land and Environment Court. The dispute concerned the validity of a development consent granted by South Sydney Council (the respondent) for the construction of a residential flat building. The appellant, a neighbouring landowner, contended that the consent was invalid due to a failure to comply with certain procedural requirements of the relevant planning legislation.

The primary legal issue before the Court of Appeal was whether the development consent granted by the Council was invalid by reason of an alleged failure to give proper notice of the application to adjoining landowners, as required by section 311 of the *Local Government Act 1919* (NSW) and clause 34 of the *Environmental Planning Instrument No 26* (EP&A Act). The appellant argued that this procedural defect rendered the consent a nullity.

The Court of Appeal, comprising Gleeson CJ, Handley JA and Powell JA, considered the nature of the notice requirement. It was held that while the requirement for notice to adjoining landowners was mandatory, a failure to comply with it did not automatically render the consent a nullity. The Court applied the principle that the invalidity of an administrative act for non-compliance with a statutory requirement depends on the nature and importance of the requirement and the consequences of non-compliance. In this instance, the Court found that the defect, while a breach of a statutory duty, did not go to the root of the Council's power to grant consent, and therefore the consent was not a nullity. The appeal was dismissed.