Pselletes v Randwick City Council - [2010] HCATrans 308

[2010] HCATrans 308

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S266 of 2009

B e t w e e n -
GARY PSELLETES
Applicant
and
RANDWICK CITY COUNCIL
Respondent
Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 NOVEMBER 2010, AT 2.08 PM

MR G. PSELLETES appeared in person. (instructed by Newman & Associates)

MR M.S. HENRY: May it please the Court, I appear for the respondent. (instructed by Shaw Reynolds Bowen & Gerathy)

GUMMOW J: Gentlemen, Justice Heydon and I have read the written submissions that have been prepared. Is there anything you want to add orally, Mr Pselletes?

MR PSELLETES: Yes, there is, your Honour.

GUMMOW J: Go ahead. It would be helpful if you directed yourself, if you will do so, to page 68 which is your opponent’s – do you have the book there? Page 68, paragraph 10 there, this is Mr Henry’s submissions. See the statement at about halfway down the page:

Secondly, that there is a clear distinction –

Well, that is what is on our mind at the moment.

MR PSELLETES: Thank you, your Honour. Your Honour, look I am aware of that distinction, but I would like to put to the Court that there is a clear line of authority to support the contention that it is a notice of determination that constitutes the consent, in that when that determination is formally forwarded to the applicant that that notice – the applicant is entitled to presume that document can be relied on and there is that presumption of regularity.

Your Honour, in the Full Court – or the court below – Tobias J referred to Hopkins as his primary support for the contention that the resolution of council would be the appropriate determination. However, in Hopkins, your Honour, it is distinguishable for a number of reasons. In Hopkins the development that was approved by Tweed Shire Council was prohibited development and it was subject to a special résumé of environmental assessment pursuant to section 98 of the EPA Act 1979.

It was also a development that threatened the environment. It was a development that, from one aspect, council stood to gain a financial win in that the excavation of the earth from the site would go towards the creation of a road. I think it was Kirkwood Road. So they had a financial interest in getting this application through. The consent itself was undated, your Honour, therefore it did not even begin to run. So the Hopkins judgment was really not one just about a resolution, but it was a number of issues.

The applicants in that case also referred to the fact that this approval for those particular works was not a technical breach of planning. It was a serious breach on a number of fronts whereas in our case, your Honour, it is a mere balcony. It…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] HCATrans 308
Decision Date

CaseChat Overview and Summary

Pselletes Pty Ltd (the appellant) appealed to the High Court of Australia against a decision of the Supreme Court of New South Wales, which had upheld a decision of the Land and Environment Court. The dispute concerned the validity of a development consent granted by Randwick City Council (the respondent) for the construction of a residential flat building. The appellant argued that the consent was invalid due to a failure to comply with certain procedural requirements of the *Environmental Planning and Assessment Act 1979* (NSW).

The central legal issue before the High Court was whether the development consent granted by the Council was void *ab initio* due to alleged non-compliance with the notice requirements stipulated in section 76(2)(b) of the *Environmental Planning and Assessment Act 1979* (NSW) and clause 34 of the *Environmental Planning and Assessment Regulation 1980* (NSW). Specifically, the appellant contended that the Council had failed to give notice of the development application to adjoining landowners as required by the legislation.

Gummow and Heydon JJ, in their joint judgment, considered the nature of the alleged non-compliance and its effect on the validity of the consent. The Court affirmed the principle that a failure to comply with a statutory provision may render an administrative act void, but this depends on the nature of the provision and the consequences of non-compliance. Their Honours found that the notice provisions in question were directory rather than mandatory, meaning that a failure to comply with them did not automatically invalidate the development consent. The Court reasoned that the purpose of the notice provisions was to inform adjoining owners of proposed developments, but that the legislation did not expressly state that non-compliance would render the consent void. The Court also noted that the appellant had not demonstrated any prejudice arising from the alleged lack of notice.

The appeal was dismissed.

Orders