Palerang v Richard David Graham - [2010] NSWLEC 272

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Palerang v Richard David Graham [2010] NSWLEC 272

PARTIES:
APPLICANT
Palerang Council

RESPONDENT
Richard David Graham

FILE NUMBER(S):
40930 of 2010

CATCHWORDS:
CIVIL ENFORCEMENT :- development consent for green waste disposal facility - designated development - public notification of application failed to comply with cl 78 of the Environmental Planning and Assessment Regulation 2000 - incorrect property address in notice - applicant for consent not identified in notice - failure to indicate right of appeal in public notice - failure to notify objector that consent had been granted - Council impugning its own consent - declaration of invalidity of consent made - costs

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000, cl 78
Uniform Civil Procedure Act 2005
Uniform Civil Procedure Rule 42.1

CASES CITED:
CSR Limited v Yarralumla Shire Council (Cripps J, 2 August 1985, unreported)
Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207

CORAM:
Craig J

DATES OF HEARING:
26 November 2010

EX TEMPORE DATE:
26 November 2010

LEGAL REPRESENTATIVES

APPLICANT
I Hemmings (Barrister)
SOLICITORS
Williams Love & Nicol Lawyers

RESPONDENT
J Doyle (Barrister)
SOLICITORS
Thomsons Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
CRAIG J
26 November 2010
40930 of 2010 PALERANG COUNCIL v RICHARD DAVID GRAHAM
EX TEMPORE JUDGMENT

HIS HONOUR: By summons filed on 16 November 2010, Palerang Council seeks declaratory and injunctive relief concerning the grant of development consent for the operation of a green waste disposal facility in an area known as Mulloon in the Southern Tablelands of New South Wales. At the time of filing its summons, the Council, as applicant, also filed a notice of motion seeking an order that the hearing of the proceedings be expedited.
That notice of motion came before me today as duty judge. When the matter was called for hearing, the Council sought to amend the summons upon which it moved and also filed amended points of claim. Mr Doyle, who appeared on behalf of the respondent, consented to the filing of those amended documents and at the same time filed an appearance in Court which was a submitting appearance save as to costs. Both parties requested that I proceed to hear the matter forthwith on the basis that the proceedings were not contested. I acceded to their request.
The proceedings are unusual in that they involve an application by the Council to impugn a development consent that it had granted. That statement requires some brief elucidation.
On 17 October 2009, the Council granted consent to an on-farm composting facility which implemented State government policy to improve generally the means by which waste is disposed of in this State. It was a facility intended to improve the process of waste disposal by converting green waste into fertiliser. The applicant for the consent which the Council granted was the respondent in the present proceedings.
The development proposed, described as part of a green waste project, was, by operation of Schedule 3 to the Environmental Planning andAssessment Regulation 2000 (the Regulation), designated development. It was designated development because it fell within the description contained in cl 13 of the Schedule, being a waste composting facility or works. It was therefore a development application required to be accompanied by an environmental impact statement. Importantly for present purposes, the Council was required to observe the provisions of both the Environmental Planning andAssessment Act 1979 (the Act) and the Regulation as those provisions relate to the processing and determination of designated development applications. Ultimately, it was in the process of notification that the Council’s actions failed to address the provisions of the Act and Regulation.
The evidence amply demonstrates that there are four aspects of the processing of the application that did not meet requirements of the statutory provisions. An important element of the operation of the Act is the element involving public participation, particularly in major projects or projects that have the potential for considerable environmental impact, by requiring public notification and affording persons the opportunity to make submissions and, in effect, be heard on those applications. The defects identified in respect of the subject application are described in the following paragraphs.
First, there was a failure to identify the land the subject of the application by indicating its correct address. When public notification was undertaken, first in the form of letters to adjoining landowners, an address of the property was misstated in such a way as to be misleading. While reference to the correct deposited plan and lot number within that deposited plan was given in the notice, the road address of the site that was given was, in fact, of a property some distance away from the site intended for the proposed development. The requirement to state the correct address in any form of notification would be obvious, but in particular the requirement for the land to be correctly described is mandated by cl 78 of the Regulation. A property address is far more likely to attract the attention of an interested person than a deposited plan reference.
The second defect that has been identified is that the notification did not identify the applicant for consent. The requirement for that identification again appeared in cl 78 of the Regulation. The importance attaching to the identification of the applicant has been identified in decisions of this Court. I have been referred in particular to the observations of Cripps J. when Chief Judge of this Court, in CSR Limited v Yarralumla Shire Council (2 August 1985, unreported). His Honour there observed (at p 9):
“The identity of a developer about to undertake designated development having potentially significant environmental impact could be a matter of considerable concern to potential objectors. The Act and regulation make clear the importance of advertising development. A member of the public is entitled to make a submission by way of objection and, if consent is granted, to appeal to the Land and Environment Court.”
Although his Honour was there referring to the statutory provisions in a form different from that presently found, those same provisions for notification were in substance the same as those now found in cl 78 of the Regulation.
The third defect that has been identified in the evidence is that there was a failure in the notification of the then proposed development to inform persons of a right of appeal to the Court in the event that the Council granted development consent. The requirement for such notice is again found in cl 78 of the Regulation. Its fundamental importance is self-evident. Anybody confronted by or concerned with a development of this kind needed to be informed of the right afforded by the statute relating to designated development to appeal from the decision of the Council either in relation to an approval or indeed the imposition of a condition that might impact upon or be seen to impact upon any third party objectors. Therefore, the failure to include reference to the right of appeal within the notification letters is to my mind a fundamental error.
The fourth matter relates to a failure on the part of the Council to notify an objector to the development of the decision that it had made. The obligation to notify persons who lodged objection is contained within s 81 of the Act. Again, the right of a person who did lodge an objection to know of the entitlement to appeal to the Court from the council’s decision is fundamental to the operation of the provisions of the Act. There was one objector to the present application and he was not notified that the Council had on 7 October 2009 granted the development consent in favour of the respondent.
Acting upon the consent purportedly granted in October 2009, the respondent had taken a number of steps in an endeavour to meet or comply with the requirements of the consent, so that he would be ready to meet the contractual obligations into which he had entered to receive green waste both from the applicant Council and also from adjoining council areas. It was only in September of this year that the shortcomings in the way in which the development application had been processed came to the Council’s attention. That realisation came as a result of a submission received from a person living in the area as to his understanding of activities then being undertaken on the site without any knowledge of the consent having been granted.
Once the shortcomings had been identified, the Council sought to act with due expedition in an endeavour to remedy the situation. One such remedy was to suggest to the respondent that the development consent should be surrendered. Understandably, that did not meet a favourable response, but the respondent nonetheless indicated that if the Council moved to have the consent declared invalid, he would not oppose such a course. Thus, the position that the respondent takes to the hearing today.
I am well satisfied, having regard to the facts briefly recited, that the Council’s failures in the processing of the application lead to unlawfulness in the consent that it granted on 7 October 2009. Individually, its omissions were fundamental breaches, but collectively they are of such magnitude that, given the importance which attaches to the public participation requirements of the Act, the validity of the consent simply cannot be sustained (see generally the decision of the Court of Appeal in Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 at [79]). I therefore propose to make the declaration of invalidity that the applicant seeks.
In its initial process, the Council had also sought a consequential order restraining the respondent from acting upon the consent. Mr Graham, the respondent, has indicated through his counsel that upon the consent being declared to be invalid, he would not seek to rely upon it and indeed would not carry out any further development in consequence of it. It is therefore unnecessary to make an order in the form of injunctive relief, but I will in the formal orders that I make note his response to the making of the declaration.
As I have earlier indicated, when the matter came on for hearing today, there was a submitting appearance filed on behalf of the respondent, save as to costs. There is an issue between the parties as to the appropriate form of order that should be made pertaining to costs. Quite properly, Mr I Hemmings, who appeared on behalf of the applicant, indicated that in the circumstances it would be inappropriate that he seek that the respondent pay the Council’s costs of the proceedings. After all, they became necessary because of the Council’s own breach of the law.
The issue between the parties is as to whether there should be no order for costs or whether some order should be made in favour of the respondent. The making of such an order in favour of the respondent is in one sense complicated by the fact that he has filed a submitting appearance in the proceedings and taken no real part other than to have Mr J Doyle appear today, in effect, to observe the conduct of the substantive proceeding. Mr Doyle quite properly points out that until the point of time at which the submitting appearance was filed, he was entitled to appear and indeed did appear in answer to the notice of motion for expedition, making brief submissions about that aspect of the matter.
I am afforded considerable discretion in determining costs, acknowledging as I do both the provisions of the Civil Procedure Act 2005 pertaining to costs and Uniform Civil Procedure Rule 42.1, which commences with the position that costs should follow the event. It is clear that in the present circumstances, no order of that kind should be made, a position which, as I have said, is accepted by Mr Hemmings on behalf of the Council.
In all the circumstances, I am disposed to make an order for costs but to limit that order to costs in favour of the defendant in respect of the notice of motion for expedition. After all, it was immediately after that time that the submitting appearance was filed.
The orders that I make, therefore, are these:
1.I declare that the development consent numbered DEV.2008.0443 granted by the applicant to the respondent for a composting facility on the land described as “Landtasia Ranch” being Lot 1566 in Deposited Plan 1121609 and known as 9006 Kings Highway, Mulloon, is invalid and of no legal effect.
2.I note that the respondent will not undertake any development upon the land in reliance upon the development consent now declared to be invalid.
3.Applicant to pay the Respondent’s costs of the Notice of Motion returnable today seeking an order for expedition.
4. Exhibits may be returned.
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