Sisic v Rockdale City Council

[2007] NSWLEC 687

Land and Environment Court

of New South Wales

CITATION:	Sisic v Rockdale City Council and Anor [2007] NSWLEC 687 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Fahrudin Sisic FIRST RESPONDENT Rockdale City Council SECOND RESPONDENTS Mr and Mrs Enny Michels
FILE NUMBER(S):	40777 of 2007
CORAM:	Pain J
KEY ISSUES:	Judicial Review :- Whether failure to notify development application if sent by prepaid post but not physically received - whether requirement to notify development applications under Development Control Plan satisfied - whether s153 of Environmental Planning and Assessment Act 1979 applies to notification of development application - whether evidence that notice not received relevant Procedural Fairness :- whether compliance with the Environmental Planning and Assessment Act satisfied First Respondent's obligation to accord procedural fairness to Applicant for notification of a development application
LEGISLATION CITED:	Development Control Plan 50 (Community Engagement in Development Decisions, August 2003) Environmental Planning and Assessment Act 1979 s74C(1)(c), s79A(2), s101, s153 Environmental Planning and Assessment Regulation 2000 Income Tax Assessment Act 1936 (Cth) Interpretation Act 1987 s5, s76 Land and Environment Court Act 1979 s25B Landlord and Tenant Act 1927 (17 & 18 Geo 5, c 36), s23 Law of Property Act 1925 (15 & 16 Geo 5, c 20), s196(4) Local Government Act 1993 s710 Migration Act 1958 (Cth) s441A, s 425A
CASES CITED:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876; Annettts v McCann (1990) 170 CLR 596; CA Webber (Transport) Ltd v Railtrack plc [2004] 1 WLR 320; Cody v JH Nelson Pty Ltd (1947) 74 CLR 629; Hillpalm Pty Ltd v Tweed Shire Council (2002) 119 LGERA 86; Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438; Kioa v West (1985) CLR 550; Kyogle Shire Council v Muli Muli Local Aboriginal Land Council (2005) 62 NSWLR 361; Lesnewski v Mosman Council (2005) 138 LGERA 207; Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203; Maunsell v Olins [1975] AC 373; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365; Muller v Dalgety & Co Ltd (1909) 9 CLR 693; NADK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184; Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGERA 88; Re Anasis; Ex parte Total Australia Ltd (1985) 63 ALR 493; Robinson v Corporation of Sunderland [1899] 1 QB 751; Russell v Duke of Norfolk [1949] 1 All ER 109; SBSC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 77; Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 ; WX Investments Ltd v Begg [2002] 1 WLR 2849
DATES OF HEARING:	18 September 2007 19 September 2007
DATE OF JUDGMENT:	23 November 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr J Robson SC SOLICITOR Hunt and Hunt FIRST RESPONDENT Mr T Robertson SC SOLICITOR Home Wilkinson Lowry SECOND RESPONDENTS Mr J Lazarus SOLICITOR Burrell Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

23 November 2007

40777 of 2007 Sisic v Rockdale City Council and Anor

JUDGMENT

1 Her Honour: The Applicant lives at 110 Ida Street, Sandringham. These Class 4 proceedings seek a declaration that there has been a breach of procedural fairness due to the failure of the Council, the First Respondent, to notify the Applicant of a development application made by his neighbours the Second Respondents, for alterations to their property at 84 Clareville Avenue, Sandringham. Development consent DA 575/06 was granted by the Council to the Second Respondents on 20 July 2006.

2 If successful the relief now sought by the Applicant is that the development consent be suspended under s 25B of the Land and Environment Court Act 1979 (the Court Act) and the matter referred back to the Council for further public notification and fresh assessment once submissions, if any, are received. This is different to the relief sought in the original Class 4 application which sought a declaration the development consent was null and void.

3 The development consent was advertised pursuant to s 101 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) on 7 September 2006. Accordingly any challenge to the consent must be filed within three months of that date. These proceedings were filed on 10 August 2007, well outside the three month period.

4 The ground of challenge raised by the Applicant is that he has been denied procedural fairness because he was not notified by the Council of the Second Respondents’ DA 575/06. He was not therefore able to comment and have his concerns about the impact of the proposed development on his property taken into account by the Council.

Evidence

5 The Applicant swore an affidavit on 20 August 2007 which was relied on and also gave oral evidence. It is the Applicant’s evidence that no letters from the Council concerning the development application DA 575/06 were received by him. In his affidavit the Applicant stated that he owns 110 and 112 Ida Street and his company, Brighton International Pty Ltd, owns 108 Ida Street. He states that he heard from his architect Mr Pappas that there was a development application for the neighbouring property before construction began. He asked his office manager, Ms Cvetkovic, to call the Council and see if there was any such development application. She reported that a development application had been approved on 26 July 2007. The Applicant stated that this surprised him as the previous year he had asked her to make inquiries and she was told there were no recent development applications.

6 He states he did not see a development proposal or notice in relation to 84 Clareville Avenue. The development causes overshadowing and loss of privacy to his property and he would have made a strenuous objection had he received notice. He annexed correspondence from his solicitors to the Council and the Second Respondents. Annexure A to his affidavit was a letter from Hunt & Hunt, solicitors, to the Director of City Services at the Council dated 12 July 2007. It stated that although Council had advised that notices were sent to all five properties owned by the Applicant, none of these were received and it was a coincidence beyond belief that all five could have gone astray. Further, the letter stated that the Applicant only became aware of the development consent when construction commenced on the Second Respondent’s property. The impact on the Applicant’s property in terms of loss of privacy was set out

7 The Applicant stated that he always has the mail from his home address diverted to his office at 65 The Grand Parade, Brighton-le-Sands. This is also the mailing address for his company Brighton International Pty Ltd. Ms Cvetkovic’s duties include sorting mail and contacting him if there is anything urgent.

8 In cross-examination he stated that the office at 65 The Grand Parade received lots of mail, possibly hundreds of letters a week, that he was often absent on business and that he relied on Ms Cvetkovic to open his personal and business mail.

9 The Applicant also relied on affidavits of Mr Aloe, licensed builder, sworn 22 August 2007 and Ms Cvetkovic, office manager for Brighton International, sworn 20 August 2007. Both deponents also gave oral evidence.

10 In her affidavit Ms Cvetkovic stated that mail from 108, 110 and 112 Ida Street is directed to 65 The Grand Parade and annexed three mail redirection confirmations from Australia Post in the name of F Sisic. These identified the “old address” as respectively 108, 110 and 112 Ida Street, identifying the “new address” as 65 The Grand Parade in each case. She stated that the letterbox at 65 The Grand Parade is open and not a lockable box. Normally someone working in the front office would hear the postman and collect the mail from the box. Otherwise, if someone saw correspondence in the letterbox they would bring it in and give it to her to sort. There are nine or ten people employed at the premises and everyone comes in through the front door, therefore if there is mail the staff see it. She annexed photographs of the letterbox at 65 The Grand Parade to her affidavit.

11 Ms Cvetkovic also annexed records from the Council's file listing owners to whom notification was sent regarding the development. She states that she did not see any notifications from the Council. Late last year she made a telephone call to Council in response to request from the Applicant and was told that there were no development applications lodged for 84 Clareville Avenue apart from one in 2002.

12 In oral evidence, Ms Cvetkovic confirmed that the redirection notices attached to her affidavit were all the redirection notices. She said that mail addressed to Brighton International at 108 Ida Street is redirected to 65 The Grand Parade. She was not sure if mail in the name of “The Occupier” at 108 Ida Street was redirected to 65 The Grand Parade. She thought that rates notices came directly to 65 The Grand Parade rather than by redirection. She stated that a photograph attached to her affidavit showing mail in the letterbox showed a typical day’s mail. Usually it has a rubber band around it.

13 Mr Aloe deposed that he has been employed as the site foreman for development at 110-112 Ida Street. He stated that he had a conversation with Mr Michels (one of the Second Respondents) who said he was going to build an extension on his roof soon. Mr Aloe passed this information to Mr Pappas. In oral evidence he confirmed that this conversation occurred late last year.

14 In oral evidence Mr Aloe stated that he worked for the Applicant for about 15 months from about January 2006 to May 2007, during which time a structure already on the site was completed, including some rectification works. He visited the site every day, for at least some part of the day. He did not recall seeing a letterbox on the site but noted that there was temporary fencing on the site and that for other projects the postman would put the letters in such temporary fencing. However, he did not actually recall receiving any items by mail at the site. He visited the Applicant in his office at 65 The Grand Parade frequently. He remembered seeing a letterbox there, but at some stage there was an accident “or something” and the fence collapsed, so there may not have been a letterbox at some stage. However there was always someone in the office. The letterbox there is open to the street. He did not leave anything in the letterbox.

15 The Council relied on two affidavits of Mr Peters, Council Document Management Team Leader, sworn 14 and 17 September 2007, an affidavit of Mr Grima, Council’s Revenue Coordinator, sworn 17 September 2007 and an affidavit of Ms Hazelman, Council Document Management Officer, sworn 17 September 2007.

16 In his first affidavit Mr Peters set out the Council’s system for identifying properties affected by development applications and sending notification letters. He annexed the "affected properties list" showing all the properties to which notifications were addressed regarding DA 575/06. This included the Applicant at 65 The Grand Parade, the Applicant at 112 Ida Street, Brighton International Pty Ltd at 65 The Grand Parade and "The Occupier" at 108 Ida Street and 110-112 Ida Street. He also annexed a notification letter he found on the file addressed to "The Occupier" at 110-112 Ida Street which had been marked "Return to Sender". In his second affidavit, Mr Peters stated that external mail is taken to the post office every day, usually by a Council officer from the Council’s depot.

17 In her affidavit, Ms Hazelman stated that she was responsible for the notification process in relation to DA 575/06 at 84 Clareville Avenue. She stated that notification letters are addressed to the property addresses of surrounding properties unless these have a different mailing address in which case the letter is sent to the property address and the mailing address. She prepares the letters in accordance with Council procedures and puts them in the "mail out” tray.

18 In her oral evidence, Ms Hazelman agreed that the day before the hearing commenced was the first time she had looked at the Council file in relation to the Applicant’s concern that he had not been notified. Prior to that she had not been aware of this. In response to a question as to whether her affidavit set out the complete Council system in relation to dealing with letters, she said “that is the procedure”. She agreed that the return of a document means that it has not been read by anyone. In response to the question “there’s no procedure in place that you have given any evidence about for dealing with such returns, is there?” she said “not from document management side”.

19 A copy of a rates notice for 1 July 2007 to 30 June 2008 for 110 -112 Ida Street, sent to the Applicant at 65 The Grand Parade, was annexed to Mr Grima’s affidavit. It indicated that the rates were paid. Mr Grima stated that according to Council's computer records, rates notices for the periods July 2005 to 30 June 2006 and 1 July 2006 to 30 June 2007 were sent to the Applicant at 65 the Grand Parade in relation to the property at 110-112 Ida Street and these were paid.

20 It was not necessary to read further evidence in addition to that of the Applicant about the impact of the development on 110 Ida Street because it was agreed by all the parties that a legitimate concern of the Applicant to raise with the Council in relation to development consent DA 575/06 was the impact of the built structure on privacy at that address.

21 Further, as the Applicant sought relief different to that in the original Class 4 application of a declaration of invalidity of development consent, the evidence of the Second Respondents about the consequences to them if the development consent was declared invalid does not need to be considered in this judgment. I note that most of the building work carried out pursuant to the development consent was completed before the hearing.

Relevant legislation

22 Section 74C(1)(c) of the EP&A Act states:

The relevant planning authority may prepare a development control plan (or cause such a plan to be prepared) if it considers it necessary or desirable:
. . .

(c) to provide for (or exclude) public or particular advertising or notification of any of the following:

(i) a development application for specified development (other than designated development or advertised development),

(ii) a request for the review of a determination of a development application where the applicant for review makes amendments to the development described in the original development application,

(iii) an application for the modification of a development consent for specified development (including advertised development but not designated development),

(iv) an application for a complying development certificate, or . . .

23 Section 79A(2) of the EP&A Act states:

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.
This section came into effect in 1997 by virtue of the Environmental Planning and Assessment Amendment Act 1997 Sch 1 [32].

DCP 50 (Community Engagement in Development Decisions, August 2003)

24 Part 1 and Part 3 of DCP 50 (Community Engagement in Development Decisions, August 2003) (the DCP) are at Annexure A to this judgment. Clause 3.1 of DCP 50 and Table 1 state that the Council is to notify properties either side and to the rear of the lot being developed in the case of a second storey addition to a residential dwelling.

25 Section 153 of the EP&A Act provides:

(1) Where under this Act any notice or other document is required to be given to or served upon any person, the notice or other document may be given or served:
(a) in the case of an individual:

(i) by delivering it to him or her, or

(ii) by sending it by prepaid post addressed to him or her at the address, if any, specified by him or her for the giving of notices or service of documents under this Act, or, where no such address is specified, at his or her usual or last known place of abode or his or her last known place of business, or

…
(2) A notice or other document shall, in respect of a notice or other document sent by prepaid post in accordance with subsection (1) (a) (ii) or (b) (ii), be deemed to have been given or served at the time at which the notice or other document would be delivered in the ordinary course of post.
Interpretation Act

26 Section 76 of the Interpretation Act 1987 provides:

(1) If an Act or instrument authorises or requires any document to be served by post (whether the word “serve”, “give” or “send” or any other word is used), service of the document:
(a) may be effected by properly addressing, prepaying and posting a letter containing the document, and
(b) in Australia or in an external Territory-is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted, and
(c) in another place-is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected at the time when the letter would have been delivered in the ordinary course of post.

(2) In this section:

working day means a day that is not:

(a) a Saturday or Sunday, or
(b) a public holiday or a bank holiday in the place to which the letter was addressed.

27 Section 5(2) of the Interpretation Act states that that Act applies except if the contrary intention appears in the relevant Act.

Applicant’s submissions

28 The Applicant submitted there has been a breach of the EP&A Act because s 79A(2) of the Act requires that notification must be in accordance with the provisions of a DCP if the DCP provides for notification of the development application as DCP 50 does. The Applicant has not been notified of the Second Respondents’ development application. There is a legal requirement that the development application be brought to his attention. This case is strengthened by the fact that a letter addressed to “The Occupier” was marked “returned to sender” by the post office and physically returned to the Council. According to the Applicant’s counsel, the Court of Appeal held in Lesnewskiv Mosman Council (2005) 138 LGERA 207 at [59] that notification must be provided to a person required to be notified under a DCP. Further, there has been a breach of the rules of procedural fairness, which are given statutory force by s 79A, see Lesnewski at [57], due to the failure of the Applicant to receive the notice and have the opportunity to exercise his right to be heard by the Council in relation to DA 575/06. A failure based on a breach of the natural justice requirement under the EP&A Act is a ground of challenge which can be pursued despite the time bar provision in s 101, see Lesnewski at [78]. (The other parties accept this.)

29 There was a denial of procedural fairness in that the Applicant did not receive notification even if the Court found that the Council was not at fault: Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365, Full Federal Court, French, Allsop and Graham JJ, at [101]. A breach of procedural fairness can occur without any personal fault on the part of the decision maker: Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438 at [22] per Gleeson CJ. While fault of a party’s advisers will not be sufficient to give rise to a breach of the rules of procedural fairness (Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876), that is not the case here. The situation here is similar to the case of Re Anasis; Ex parte Total Australia Ltd (1985) 63 ALR 493 where there was found to be a breach of procedural fairness where an order of the court was made in the absence of a bankrupt due to the failure of Australia Post to deliver the letter of notification.

30 This is not a case where, although a person was not notified, he or she was not prejudiced because he or she knew about the proposed decision in any event: see Robinson v CorporationofSunderland [1899] 1 QB 751; at 751, 757-758; Russell v Duke of Norfolk [1949] 1 All ER 109 at 117-118.

31 The Applicant submitted that he was deprived of an opportunity to make submissions against the development consent by not having been notified. He has been unable to exercise his right to make submissions to Council, a right based on the legitimate expectation or actual expectation created by Council’s DCP notification policy and practice: Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 226-7.

32 Because there was a complete failure to notify, meaning the Council did not ensure that its letter was physically received by the Applicant or his staff, it has failed in its duty to notify.

33 In response to the Respondents’ submissions, the Applicant submitted s 153 of the EP&A Act does not apply, nor does s 76 of the Interpretation Act as, inter alia, the requirement to notify arose under the DCP, not the EP&A Act.

Council’s submissions

34 The Council submitted the DCP sets out a comprehensive and detailed code for the notification of neighbours by prepaid postal letter. This is provided for by s 79A(2) and s 74C(1)(c) of the EP&A Act. This has been complied with and accordingly there is no breach of the Act. There is no basis for a finding that there is a breach of procedural fairness.

35 The Council submitted s 153 of the EP&A Act applies in this case. The notification letter is a notice and, if it is not, is a document as also referred to in the section. It must be given to or served on the neighbours. The DCP requires that letters be sent. Giving or serving the notice by sending it is clearly contemplated by s 153: see references to “send” in s 153(1) and (2). Section 153(2) provides an irrebuttable presumption of service of notices upon the deemed delivery of a properly posted and addressed letter. There is no obligation on the Council to ensure delivery.

36 Section 153 also expresses a contrary intention, thereby ousting s 76 of the Interpretation Act. That is important, because on one view of it the presumption of delivery in s 76 is rebuttable. Even if s 76 applies, the presumption has only been rebutted for one letter, and that letter was not even addressed to the Applicant.

37 The evidence discloses that letters were sent to the Applicant by the Council in accordance with the Council’s usual procedures. It is clear from the affidavit of Mr Grima that the Applicant’s last known place of business was 65 The Grand Parade as that is where rate notices were sent in 2006 and these have been paid. There are three mail redirections attached to the affidavit of Ms Cvetkovic for the Applicant at 108, 110, and 112 Ida Street. It is irrelevant that one notification letter was “returned to sender”, that is, the Council. At least six other notifications were sent in accordance with Council’s processes and not returned to sender.

38 Although unnecessary to do so, the evidence also establishes delivery of six letters to 65 The Grand Parade concerning DA 575/06 and only one letter addressed to ““The Occupier””, not the Applicant, at 110-112 Ida Street was returned to sender.

39 In Kyogle Shire Council v Muli Muli Local Aboriginal Land Council (2005) 62 NSWLR 361, the Court of Appeal decided that under an analogous provision in the Local Government Act 1993 (the LG Act) (compare s 710(1), (2)(a), (b), and (c) of the Local Government Act 1993 with s 153(1)(a)(i) and (ii) of the EP&A Act – the provisions are almost identical), posting was sufficient and service was thereby effected. This decision is binding on this Court. Tobias JA decided that the modes of service “contain within them all that is necessary to enable determination of when the particular mode of service has been completed or effected” , [32]. The effect of that finding was that:

Provided the letter is pre-paid and properly addressed in accordance with the paragraph, it is the act of posting that constitutes service and, once posted, the act of service is complete and the time of completion is self evident. See [35]

40 The rebuttable presumption in s 76 of the Interpretation Act does not apply where there is a deemed service provision in legislation. That was the effect of s 710(8) of the LG Act: it raised a conclusive presumption of service. That is also the effect of s 153(2). That is sufficient, the Court of Appeal has held, to oust s 76; Muli Muli at [41], [42].

41 That this result might, in a few cases, cause unfairness is accepted, but there are powerful reasons of policy which Tobias JA explained in Muli Muli for presumptive service provisions; [43], [45]. The United Kingdom Court of Appeal has reached the same conclusion: CA Webber (Transport) Ltd v Railtrack plc [2004] 1 WLR 320, where it was said at [22] that such provisions were designed:

… not to protect the addressee of the notice, but to assist the server of the notice by offering him choices as to how to effect service in ways which will be deemed to be good service, even if the notice is never received by the intended recipient


and see [50] – [54]. The same conclusion was reached in WX Investments Ltd v Begg [2002] 1 WLR 2849 at [14] – [16].

Second Respondents’ submissions

42 The DCP specifies what notification of development consent is required. It does not require personal service. No higher standard of notification than it specifies is required by the EP&A Act. Accordingly, there is no breach of the Act. Nor is there a breach of any natural justice requirement under that Act.

43 The Applicant is arguing without explicitly stating it that personal service is necessary to satisfy the natural justice obligations the Council has under the EP&A Act. Such a requirement would be onerous in terms of time and monetary resources for councils to undertake given the large number of such notices they must send out. Further this would add uncertainty to the development assessment process because if a council was unable to personally serve an affected individual there could be no certainty about the validity of the development consent.

44 The Second Respondents relied upon s 153 of the EP&A Act. Section 153 only applies where “under this Act any notice or other document is required to be given or served upon any person”. Section 153 is applicable because the notification of the development application is required to be given under s 79A(2) of the EP&A Act. Section 79A(2) is a provision which requires notice to be given, so s 153 would therefore apply. Although it is not necessary to go that far, if the Court considers that the requirement to notify stems from the DCP itself, and not directly from s 79A(2), then the Second Respondents nonetheless submit that the notification requirements in the DCP still arise “under” s 79A(2) because that is the provision which gives the DCP statutory force.

45 Section 153(1)(a)(ii) of the EP&A Act permits service of notices under the Act by prepaid post, and s 153 deems service to be effected at the time at which the notice would be delivered in the ordinary course of post. The act of posting a notice by prepaid post effects and completes the act of service in accordance with s 710 of the LG Act (which is relevantly in the same terms as s 153 of the EP&A Act): Muli Muli at [32], [37]. The Court of Appeal also held in Muli Muli that s 710 of the LG Act evidences a “contrary intention” within the meaning of s 5(2) of the Interpretation Act so that the test for service in s 76 of that Act does not apply to define the time at which the service is effected.

46 However, even if s 76 of the Interpretation Act did apply, that would not assist the Applicant because s 76(1)(a) expressly authorises service of documents by post, and deems service (or notification) to be effected by “properly addressing, prepaying and posting a letter”. Thus, under either statutory regime, notification is deemed to be effected by prepaid post. That is, there will be valid notification where a letter has been sent by prepaid post. There is no requirement that the person actually receive the letter.

47 There are decisions of the Federal Court concerning migration applications under the Migration Act 1958 (Cth) that have held that where there is evidence that the notification letter was sent to the applicant by prepaid post that is sufficient to discharge the notification requirements of the statutory scheme, see NADK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 at [16], SBSC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 77 at [16]. These provisions are similar to those in DCP 50.

48 The evidence discloses that seven notification letters were sent to 56 The Grand Parade. It is implausible that none of the notifications were received by the Applicant or his agents/employees. The evidence suggests that the Applicant has a busy office which receives a lot of mail. The evidence that one letter addressed to “The Occupier” of 110-112 Ida Street was returned to sender at the Council supports a finding that the other notification letters were sent and delivered by Australia Post to 65 The Grand Parade.

Finding

49 The Applicant’s case as pleaded in the Points of Claim is that the Council was in breach of the EP&A Act because the DCP was not complied with and the Applicant was thereby denied procedural fairness in relation to the Second Respondents’ development application. The Applicant’s case presented at the hearing expanded this ground to argue that a breach of the common law duty of procedural fairness arose over and above compliance with the DCP. I will first consider whether there has been compliance with the Act and the DCP. The separate issue of whether s 153 applies and has been complied with also arises. That requires consideration of whether s 76 of the Interpretation Act applies or is ousted by s 153.

50 If there has been compliance with s 79A(2) of the EP&A Act through the DCP, the issue will then arise of whether there can be any separate finding of a breach of procedural fairness despite compliance with the requirements of s 79A(2) of the Act. The Respondents submitted that the effect of the Act and the DCP is to provide an exhaustive code in relation to the Council’s obligation to afford procedural fairness in relation to specified development in the Act. If that is the case, there is no room for a finding of denial of procedural fairness if the Act and the DCP have been complied with.

Has the DCP been complied with?

51 The scheme for the public notification of development applications under the EP&A Act and the Environmental Planning and Assessment Regulation 2000 (the Regulation) falls into three categories for current purposes. The Act specifies the public notification requirements for designated development in s 79 of the EP&A Act. For all other development applications s 79A of the EP&A Act specifies the public notification requirements. For advertised development, s 79A(1) requires compliance with the Regulation, any relevant environmental planning instruments and any relevant development control plans. For any specified development the notification requirements arise from the terms of a development control plan, if this provides for notification or advertising, by virtue of s 79A(2). There is no definition of specified development. The requirement to notify this development application arises as an obligation under the Act as the DCP requires it.

52 The DCP was made under the former s 72 of the EP&A Act and continues by virtue of the savings and transitional provisions in Sch 6 of the EP&A Act (see Div 3, cl 194). Section 74C(1)(c) now provides that councils may make a DCP which provides for or excludes public notification of a development application for a specified development. That section is in similar terms to the former s 72.

53 The DCP requires that:

(a) under cl 3.1 all local residents who may reasonably be affected by a development proposal are to be notified of the proposal

(b) notification under cl 3.1 was to be effected by sending letters to the owners and occupiers of surrounding properties listed in the relevant table, Table 1

(c) under Table 1, for alterations or additions to a two storey dwelling house, notifications must be sent to properties on either side and in the street at the rear.

54 In Lesnewski Tobias JA held at [60] that “a breach of s 79A(2) does not necessarily lead to the conclusion that there has been a denial of procedural fairness” as a minor non-compliance may not amount to a denial of procedural fairness. His Honour considered it was inappropriate to express any findings as to whether any particular non-compliance with the relevant notifications DCP was a breach of procedural fairness in that case. Lesnewski did not consider the circumstances of this case. Nor does it stand for the proposition for which it was relied on by the Applicant that actual provision of the notification under the DCP to adjoining properties, meaning physical delivery in such a way that the notice comes to the attention of the relevant person, was required.

55 The Council’s undisputed evidence is that altogether seven letters were posted by pre-paid post to the Applicant or his company Brighton International in the usual way by the Council’s administrative officer Ms Hazelman. The Applicant’s evidence is that he is the managing director of Brighton International. The letters addressed to the Applicant were sent to 110-112 and 112 Ida Street and 65 The Grand Parade. The letters sent to 110-112 and 112 Ida St would have been diverted to 65 The Grand Parade in accordance with the mail redirections. Letters were also sent to “The Occupier” at 108 and 110-112 Ida Street. Two letters were also sent to Brighton International Pty Ltd, one at 108 Ida Street redirected to 65 The Grand Parade and one to 65 The Grand Parade. The letter marked “return to sender” was not addressed to the Applicant but rather “The Occupier”. As asserted by the Council this evidence suggests that delivery to 65 The Grand Parade by Australia Post took place for all the letters identified as sent by the Council’s officers apart from the one letter returned to sender. Mr Grima’s evidence confirms that this address is the last known business address for the Applicant.

56 This evidence suggests the terms of the DCP and therefore the EP&A Act have been complied with, regardless of whether s 153 of the EP&A Act applies, as several letters were sent to the Applicant by the Council based on the evidence of Ms Hazelman. The fact that a letter addressed to “The Occupier” at 110 Ida Street was returned to sender does not give rise to a failure to comply with the DCP. It is the Applicant’s evidence that none of the letters referred to in Ms Hazelman’s evidence were physically received by him or drawn to his attention by his staff. As his evidence does not preclude the letters having been placed in the letter box by a postman it is necessary to consider the application of s 153. azelmaH

Does s 153 of the EPA Act apply and what effect does it have?

57 The Council submitted there is an irrebuttable presumption in s 153(2) that service of a notice is effected under s 153(1)(a)(ii) by sending a notice by prepaid post at the usual or last known place of business of a person. Further the Council argued that s 153 operated to the exclusion of s 76 of the Interpretation Act. I will consider firstly whether s 153 applies and secondly its legal effect if it does.

(i) Does s 153(1) apply?

58 The Applicant submitted s 153 of the EP&A Act did not apply because it was concerned only with a “notice” where specified in the Act. The requirement to notify development applications under s 79A(2) of the EP&A Act is not a “notice” or “document” to which s 153 applies because s 79A(2) does not use those words. Rather it refers to notification or advertising in accordance with a DCP. There is no definition of notice or document in the Act. The opening words of s 153 state that if the Act requires that any notice or document be given to any person it may be given in the way specified in the section.

59 A general principle of statutory construction is that if general words are used, they will be given their plain and ordinary meaning unless the contrary is shown. (DC Pearce and R Geddes, Statutory Interpretation in Australia (6th ed, 2006) 43). Both “notice” and “document” have a wide ordinary meaning. There is no indication from a reading of the Act and s 153 that these words should be limited only to a “notice” or “document” where these words specifically appear. The Applicant did not refer in its argument to any specific example of where those words appear in the Act apart from s 153 as the sections to which s 153 is directed. The words “Where under this Act any notice or other document is required to be given to or served upon any person” in s 153 should be given a broad meaning in the context of this legislation. I consider that the requirement to notify development applications referred to in s 79A(2) is a requirement that s 153 applies to if that notification is required to be by letter (document), as the DCP requires in this case.

What is the effect of s153(2)?

60 The next issue to consider is what is the legal effect of s 153. Under s 153(2) a notice or document is deemed to be served or given at the time the notice would be delivered in the ordinary course of post. The issue arises of whether ‘deemed to have been given or served’ gives rise to an irrebuttable presumption of service or giving of a document. I have not been referred to any case considering the operation of s 153(2) specifically. As identified by Gleeson CJ in Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203:

It commonly happens that, because legislation contains a deeming provision, there may arise a question of construction which turns, not so much upon the meaning of the word “deemed”, as upon a view concerning the statutory purpose for which it has been used. Such a question may turn, for example, upon whether the legislature is intending to create a statutory fiction or whether, on the other hand, it is merely making a provision for the removal of doubt which might otherwise exist: see, eg Muller v Dalgety & Co Ltd (1909) 9 CLR 693 at 696 per Griffith CJ.

61 In Muller v Dalgety & Co Ltd (1909) 9 CLR 693 Griffith CJ stated that “deemed” is more commonly used for the purpose of creating a “statutory fiction” and it is very important to consider the purpose for which the statutory fiction is created (at 696). There are several cases referred to by the Council which have considered similar provisions in relation to the service of documents and/or notices to determine if these provide an irrebuttable presumption of service. Of greatest relevance is the decision of Muli Muli which considered s 710 of the LG Act which concerned service of notices under that Act. Section 710 states:

(1) A notice required by or under this Act to be served on a person may be served as provided by this section.

(2) The service may be:
(a) personal, or
(b) by delivering the notice at or on the premises at which the person to be served lives or carries on business, and leaving it with any person apparently above the age of 14 years resident or employed at the premises, or
(c) by posting the notice by prepaid letter addressed to the last known place of residence or business or post office box of the person to be served, or
…
(8) Proof by affidavit or orally that a notice has been posted, or its transmission by electronic mail has been initiated, in accordance with this section is conclusive evidence of service.

62 Section 710 does not contain a “deeming” provision such as s 153(2) but rather provides in s 710(8) for conclusive evidence of service by means of sworn oral or written evidence. The effect of the two sections is therefore similarly conclusive of service.

63 Tobias JA (Ipp JA and Brownie A-JA concurring) held at [35] (see par 38 of Council’s submissions) that the act of posting a prepaid notice, addressed as the subsection required, completed the act of service. The primary issue in the case concerned the time of service which Tobias JA held was at the same time that service was effected by posting the letter (at [37]). There was no issue raised concerning non-receipt of the relevant rate notice, unlike the circumstances before me. The appellant council argued that s 710 when read as a whole provided not only for the permissible means or modes of service but also the time of service, thereby rebutting s 76(1)(b) of the Interpretation Act. Tobias JA essentially agreed with that submission.

64 At [30] his Honour held:

Section 710(2) sets out seven modes of service. Section 710(4)(b) and (c) add a further two modes. It is important to appreciate, and was properly acknowledged by the respondent, that with the exception of personal service, none of the other eight modes requires the person to be served actually to receive the notice before service may be taken to be effected. By "effected" I mean no more than that service is taken to have occurred in the manner prescribed. Nor, in my opinion, does it necessarily follow that because s 710(2) and (4)(b) and (c) provide for differing modes of service, it is necessary to look outside the section to ascertain when service has been effected in the sense referred to.

65 At [44] – [45] his Honour held:

However, as I have already observed, it is clear from the various modes of service referred to in s 710 (other than personal service) that service may be effected without there being any proof or requirement that the notice has actually been received by the person to be served. Thus, for instance, a young person (albeit over the age of 14) with whom a notice is left pursuant to the mode of service referred to in s 710(2)(b) may lose the notice and not tell anyone about it. Again, a building to which a notice is affixed pursuant to the mode of service referred to in s 710(2)(e) may be destroyed by fire before it comes to the attention of the addressee. Such events are inherently unlikely to occur and certainly would be very much the exception rather than the rule.

The imagination of counsel can always proffer examples (often somewhat extreme) of unfairness, but these must be balanced against two considerations. Firstly, the legislature has not made it a requirement of the service of council notices that they actually be received by the person to be served. Secondly, and certainly in the case of posting a notice, the chances of the letter containing the notice being destroyed or going astray before it reaches its destination should fairly be regarded as reasonably remote although, of course, not out of the question. In these circumstances, I do not regard the somewhat remote possibility that the post office at which the letter containing the notice is posted might be destroyed by fire or other catastrophe or, perhaps, the less remote possibility of industrial action delaying delivery as militating against what I regard as the clear intent of the legislature that the act of posting the notice in accordance with the requirements of s 710(2)(c), at least where proven, should constitute conclusive evidence that service by that mode has been "effected" at the time the letter containing the notice is posted. It follows from that conclusion that in the present case the date of posting the subject notice constituted the date of its service, namely, 31 July 2003.

66 Further cases referred to by the parties considered whether notification for service had occurred where there was not physical receipt in different statutory schemes. In Muli Muli Tobias JA referred at [31]) to Deputy Commissioner of Taxation v Taylor [1983] 2 NSWLR 139 and Deputy Commissioner of Taxation v Gruber (1998) 43 NSWLR 271, which cases dealt with the service of notices under the Income Tax Assessment Act 1936 (Cth). In Gruber the relevant section provided that a notice may be served by leaving it at, or sending it by post to, an address that appears from Australian Securities Commission documents to be the person’s place of residence or business. Similarly in Taylor if no address for service was given or a change of address was not notified, the address for service under the regulations was as in any record held by the Commissioner. Compliance with those sections was held to be sufficient for the purposes of proving service, in that receipt was not necessary.

67 Several decisions of the Federal Court have considered the operation of the service of document provisions of the Migration Act 1958 (Cth) in migration appeals before the Refugee Review Tribunal (RRT). In SBSC Lander, Rares and Besanko JJ considered s 441A of the Migration Act, which required the service of notices inviting the applicant to appeal under s 425A of that Act by sending the document to the last residential address for service provided to the Tribunal by the recipient. It was found to be satisfied despite both letters (notices) being returned to the RRT as sender. Section 441A is a similar provision to s 153. This decision applied NADK, where it was held that as notification of the hearing was sent by prepaid post to the address for service nominated by the applicant, the RRT had complied with s 441A. Thus the primary judge had been correct in holding that the fact the applicant was unaware of the hearing was of no legal relevance, per Tamberlin, Sackville and Hely JJ at [16].

68 As identified in the Council’s submissions, this approach is also confirmed by decisions of the UK courts in CA Webber Ltd v Railtrack plc and WX Investments Ltd v Begg. In WX Investments Ltd v Begg a lease incorporated s 196(4) of the Law of Property Act 1925 (UK) which provided that notices were sufficiently served if sent by post in a registered letter addressed to the person to be served at their last known place of abode or business and that service was deemed to be made at the time the letter would be delivered in the ordinary course. It was held that the phrase "deemed to be made" created a statutory fiction which may operate regardless of when the actual delivery takes place and even when the letter never in fact arrives, [15] - [18]. "The need for certainty in relation to the service of proceedings requires the fiction to be absolute in its effect", per Patten J at [15].

69 In CA Webber Ltd v Railtrack, s 23 of the Landlord and Tenant Act 1927 provided that a notice or other instrument may be served on the person intended to be served by sending it through the post in a registered letter addressed to the last known place of abode. Peter Gibson LJ (Longmore J concurring on statutory construction and result) held at [41] that when a notice is served by a primary method authorised under s 23, it does not matter whether the notice is received and the risk of non-receipt is cast on the recipient. The date of service is the date when the server entrusts the notice to the post. Peter Gibson LJ reached this conclusion although the provision lacked a phrase deeming service to have occurred, as is contained in s 153 of the EP&A Act. These English cases further support the Council’s case.

70 In conclusion, while Muli Muli considers s 710 of the LG Act, which is directed to the service of notices, “[s]erved” in s 710 has the same meaning as “served” in s 153 the EP&A Act. Further, I do not consider there is any relevant difference in practical application between the “serving of” and the “giving of” documents referred to in s 153. While the Council submitted that I was bound by Muli Muli, that case deals with a different Act and s 710(8) is not identical to s 153(2) but its effect is similar, see par 62. It is reasonable and appropriate to apply the findings in Muli Muli, given the similar wording in s 153 generally, to the scheme in s 710. Applying the reasoning in Muli Muli, I consider the legal effect of s 153 is to provide an irrebuttable presumption that delivery has occurred if effected in accordance with s 153(1)(a)(ii). A statutory fiction is thereby created (Macquarie Bank v Fociri see par 60 above) The Council’s evidence establishes that s 153(1)(a)(ii) was complied with by the Council. Numerous letters were sent to the Applicant or his company Brighton International Pty Ltd at 65 The Grand Parade. The fact that a letter addressed to “The Occupier” was returned to sender from 110 Ida Street does not alter the circumstance that notification letters were sent to the relevant address. The application of s 153(2) means that service of the notification requires under s 79A(2) has been effected by post.

71 This approach is supported by the cases in the Federal Court and English authority referred to above. I should note that in Re Anasis, relied on by the Applicant, the Federal Court rules concerning bankruptcy were considered where a notice of hearing date was not received by the debtor. The evidence disclosed that a letter sent by prepaid certified mail was not received by the debtor. It was held that the Court had inherent power to set aside the sequestration order and this was done as the interests of justice demanded it. This case suggests that a court may have the power to make orders in the interests of justice where the circumstances warrant it but I do not consider it has application in the circumstances before me.

Section 153 of the EP&A Act vs section 76 of the Interpretation Act

72 Sections 76(1)(a) and (b) of the Interpretation Act provide that any document may be served by prepaid post and service is taken to be effected on the fourth subsequent working day unless evidence sufficient to raise doubt is adduced to the contrary. Section 76 applies unless a contrary intention is found in the Act concerned (s 5(2) of the Interpretation Act). The Council argued that s 153 of the EP&A Act contains a contrary intention to that contained in s 76 so that the latter does not apply, as provided for by s 5(2) of the Interpretation Act.

73 While the Applicant argued that s 76 does not apply in this case because the requirement to notify arose under the DCP, not the Act, that submission is at odds with the case mounted by the Applicant that there has been a breach of the EP&A Act. There can only be a breach of the EP&A Act if there has been a breach of the DCP to which s 79A(2) refers. The question as to whether s 76 applied arose in Muli Muli also. Tobias JA held at [39] – [42] that the effect of s 710(8) demonstrated an intention that the statutory presumption in s 76(1)(b) of the Interpretation Act not operate. While s 153(2) is not in the same terms as s 710(8) it has the same effect because it gives rise to an irrebuttable presumption of service and also time of service, in my view.

74 I accept the Council’s submission that s 153 applies rather than s 76 of the Interpretation Act. This is supported by the finding in Muli Muli that s 76 of the Interpretation Act was ousted by s 710 in relation to the time of service. Necessary to that finding was also a finding that s 710 ousted s 76 on the issue of the effecting of service.

75 Finally, in light of my findings that the DCP was complied with and s 153 applies, the Applicant’s evidence that none of the letters sent by the Council were physically received by the Applicant or his personal assistant Ms Cvetkovic is irrelevant. The Applicant’s evidence that the letters were not received only becomes relevant if the Applicant’s argument that procedural fairness requires that more must be done than compliance with the DCP in the circumstances of this case is accepted.

Does compliance with the Act satisfy the Council’s obligation to accord procedural fairness?

76 Are the Act and the DCP a comprehensive code for notification of specified development, compliance with which satisfies the Council’s obligation to accord procedural fairness under the Act? No case precisely on this issue in relation to these sections of the EP&A Act has been located. As stated by Mason J in Kioa and Ors v West and Anor [1985] 159 CLR 550 at 585:

The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned.

77 In Muli Muli Tobias JA considered the issue of whether s 710 was a code which encapsulated all means of effecting service and also the time of service. He held that it did. The specific argument before me that compliance with a code for notification was not sufficient to discharge the Council’s obligations to afford procedural fairness was not before him.

78 The Second Respondents relied on Hillpalm Pty Ltd v Tweed Shire Council (2002) 119 LGERA 86 in which Lloyd J considered the notification requirements for development applications under the EP&A Act in circumstances where an applicant argued that it should have been notified of a subdivision application by the council when it had not been. There was no specific provision in any instrument requiring notification. The issue was whether the requirements of procedural fairness required that notice of the subdivision application be given to the Applicant. At [124] – [127] Lloyd J considered the scheme of the EP&A Act in relation to the different notification and advertising procedures for different categories of development including the provisions of the relevant LEP. He concluded that the Act provided a comprehensive scheme for public notification and there was no basis on which the Court should require more notification than the Act. At [98] he referred to Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGERA 88 in which Stein J held that the legislation provided a code for the right to be heard in the determination of the variation of a development standard and that code was contained in a Planning Scheme Ordinance. This finding was adopted by Lloyd J in Hillpalm who found that the legislation has “precluded the implication of any further requirements to fulfil the duty of procedural fairness” at [123].

79 The issue raised in this case arose in Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 in which the Court of Appeal considered the public participation requirements of the EP&A Act in relation to the alteration of environmental planning instruments under s 68(3) of the EP&A Act. At issue was whether there were any obligation to afford procedural fairness to the applicant beyond the specific provisions of the EP&A Act in circumstances where a draft plan had been exhibited and later amended in a way that affected the applicant’s interests. The issue arose as to whether the amended draft instrument should be publicly renotified although there was no specific requirement in the EP&A Act to do so. Meagher JA (Spigelman CJ dissenting) considered that the provisions of the Act specified exactly the extent to which procedural fairness was accorded to ratepayers, [182]. He held that the Council had complied with the requirements of the Act in that case. Powell JA, concurring with Meagher JA, stated that Part 3 of Division 4 of the EP&A Act seemed to indicate a legislative intention that apart from the notification requirements in that Act a council was not under any duty to accord procedural fairness to a person who might be affected by the proposed environmental planning instrument.

80 I do not agree with the Applicant’s submissions that this case is distinguishable from the majority judgments in Vanmeld on the basis that in that case the relevant notification provisions were all in the EP&A Act, whereas in this case they are contained in an instrument made under the EP&A Act. The legal basis for this case must be that there has been a breach of the EP&A Act.

81 The relevant parts of the DCP, Pt 1 and Pt 3 with Table 1 show that the DCP sets out detailed requirements for notification. There are six tables in Pt 3. Table 1 concerns development of the type the subject of DA 575/06. It refers to notification requirements for, inter alia, carport/garage/outbuilding or other ancillary structures, single storey dwelling house, alterations or additions to single storey dwelling house, two storey dwelling house, alterations or additions to two storey dwelling house, alteration or additions to a heritage item or a building within a conservation area, swimming pools and spas and internal alterations and/or minor external changes with or without a minor increase in floor area ( 50m2). While there is small type in all the tables in Pt 3 stating that the table does not form part of the DCP, a matter not referred to in argument, the clear implication given the specific references to the tables in Pt 3 is that the tables are part of the DCP. The Council’s case was predicated on the tables being part of the DCP as these illustrate the detailed nature of the DCP provisions which supports a finding that these are intended to be comprehensive.

82 Consideration of the comprehensive scheme provided for by s 79A(2) of the Act through the DCP and the above cases Muli Muli, Hillpalm and the majority judgment in Vanmeld suggests that Parliament does intend that the provisions made under the Act specify the procedural obligations of the Council in relation to the notification of development applications. I have held that this has been complied with. Accordingly there is no room for a finding that the Applicant has been denied procedural fairness in the circumstances of this case.

83 The Council has complied with its obligations to notify the Second Respondents’ development application under the Act. The evidence adduced by the Council gives rise to an inference that delivery of several letters from the Council to the letterbox at 65 The Grand Parade occurred. The Applicant’s evidence does not prove that the six letters referred to in the Council’s evidence which were not returned to sender were not delivered to the letterbox at 65 The Grand Parade. It is unknown what happened to the letters.

84 The photograph of the letterbox attached to Ms Cvetkovic’s affidavit shows it to be open to the street with no lock. The Council submitted several explanations for what may have happened to the letters, for example, that they were stolen before collection by an employee of the Applicant’s company or, as any of the staff members employed in the Applicant’s office could collect the mail the letters were collected from the letterbox but for an unknown reason not brought to the attention of Ms Cvetkovic. The Applicant’s evidence is that the office is a very busy one and received a great deal of mail. The Applicant relied on Ms Cvetkovic to open his mail for him as he was often absent attending to business affairs.

85 Whatever the fate of the letters, the Council’s evidence establishes that six letters were sent by post to the Applicant or his company at 65 The Grand Parade and no evidence was adduced to suggest they were not delivered to the Applicant’s letterbox by Australia Post. That evidence is sufficient to discharge the Council’s obligations to notify the development application in this case.

86 The Applicant is unsuccessful and I consider the Class 4 application should be dismissed. I have not heard specific argument on costs. Generally in Class 4 proceedings these are awarded on the basis that costs follow the event. I will make a costs order that the Applicant should pay the First and Second Respondents’ costs as agreed or assessed in fourteen (14) days unless a Notice of Motion is filed before then seeking a different costs order.

Orders

87 The Court makes the following orders:

1. The Class 4 application is dismissed.
2. Costs are reserved.
3. Exhibits are to be returned.

03/12/2007	-	judgment date amended - Paragraph(s) coversheet
10/06/2008	-	Act incorrectly titled - Paragraph(s) 23