The Council of the Shire of Hornsby v Gosper

The Council of the Shire of Hornsby (the Council) appealed to the New South Wales Court of Appeal against a decision of the Supreme Court of New South Wales concerning the validity of a development consent granted to the respondents, Mr and Mrs Gosper. The dispute centred on whether the Council had validly granted development consent for the construction of a dwelling house on land at 145 Pacific Highway, St Ives, despite the fact that the application for consent had not been advertised in accordance with the 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 due to the failure to advertise the application as required by section 34(4) of the *Environmental Planning and Assessment Act 1979* (NSW) (the Act). This section mandated that certain development applications, including the one in question, be advertised in a newspaper circulating in the locality. The Court was required to determine the consequence of this procedural irregularity on the validity of the consent.

The Court of Appeal, comprising Gleeson CJ, Mahoney JA and Sheller JA, held that the failure to advertise the development application was a breach of a mandatory procedural requirement. The Court reasoned that the purpose of the advertising requirement was to provide an opportunity for public objection and participation in the development assessment process. By failing to advertise, the Council had deprived the public of this opportunity, thereby vitiating the consent. The Court applied the principle that where a statute prescribes a specific procedure which is intended to protect public interests, a failure to follow that procedure renders the subsequent action invalid.

The Court of Appeal allowed the Council's appeal, setting aside the Supreme Court's order and remitting the matter to the Supreme Court with a declaration that the development consent granted by the Council was invalid.