In Simpson v Wakool Shire Council (2012)[1], the Council granted consent to a development application to use an existing industrial building for a dairy processing plant.
Mr Simpson commenced judicial review proceedings in relation to the Council’s failure to notify affected landowners.
There were two Development Control Plans that applied to the land: Development Control Plan 1 (DCP 1) and Development Control Plan 8 (DCP 8). Council notified the development application only in accordance with DCP 1, giving notice to adjoining landowners only. DCP 8 required notification to be given to owners and occupiers of land that adjoins a proposed development site and also to owners and occupiers of land that may be affected by the development proposal.
Mr Simpson claimed that the Council breached then section 79A(2) of the Environmental Planning & Assessment Act 1979 (NSW)(Act) by failing to notify the development application in accordance with the provision of DCP 8. Section 79A(2) of the Act provided that:
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.
The Court held that the Council deprived itself of the opportunity to consider submissions from objectors and owners who may have been affected by the proposed development as a result of its failure to comply with its statutory requirements.
Preston J commented that compliance with the mandatory requirements for notification of development applications is in the public interest. Public participation in the development process is crucial to the integrity of the planning system under the Act: “It is not to be viewed as a technical and tokenistic speed hump designed to slow but not divert or prevent the inexorable passage of a development application along the highway to approval.”[2]
The Court declared the development consent invalid. The Court declined to exercise its discretion not to make a declaration of invalidity (and suspend the operation of the development consent and specify terms which would have provided validity to the consent) on the basis that the breach was not merely a technical breach, there were no circumstances that justified the Council’s non-compliance and the orders sought to uphold the public interest in public participation in the development approval process.
[1] NSWLEC 163 (17 July 2012)
[2] id at para 102
