Reported Decision : (2000) 108 LGERA 176 Land and Environment Court of New South Wales CITATION : Levenstrath Community Association Inc v Tomies Timber & Anor [2000] NSWLEC 95 APPLICANT Levenstrath Community Association Inc PARTIES : RESPONDENT Tomies Timber & Anor FILE NUMBER(S) : 40057 of 1998 CORAM: Cowdroy J KEY ISSUES: Injunctions and Declarations :- Council issuing development consent for sawmill development - advertised notification of development - advertisement omitting details of description of land the subject of development - advertisement of no effect - absence of condition limiting intended production capacity of timber to be processed thereby permitting potential use for designated development - no environmental impact statement - consent uncertain - consent invalid. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 91, s 101 Environmental Planning and Assessment Regulation 1994 reg 74, reg 53C Wilson v Irongates Pty Limited (Stein J, NSWLEC 40172 of 1996, unreported); Johnson v Lake Macquarie City Council & Anor (1996) 91 LGERA 331; Walker & Newton v Nymboida Shire Council [1999] NSWLEC 272; CASES CITED: Television Corporation Ltd v The Commonwealth of Australia & Anor (1962-1963) 109 CLR 59; Mison v Randwick Municipal Council & Ors (1991) 23 NSWLR 734 ; Scott & Ors v Wollongong City Council & Anor (1992) 75 LGRA 112 ; Malcolm on behalf of Maryland Residents Group v Newcastle City Council (1991) 73 LGRA 356 DATES OF HEARING: 2/5/00 DATE OF JUDGMENT: 05/24/2000 APPLICANT Mr J Maston (Barrister) SOLICITORS Wroth Wall FIRST RESPONDENT Mr P McEwen SC LEGAL REPRESENTATIVES: SOLICITORS Gallagher & Co SECOND RESPONDENT Mr D Baird SOLICITORS Dunhill Madden Butler JUDGMENT: IN THE LAND AND MATTER No. 40057 of 1998 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 24/5/00 Levenstrath Community Association Incorporated Applicant v J & J Toms trading as Tomies Timber First Respondent Nymboida Shire Council Second Respondent JUDGMENT 1. By application class four the Levenstrath Community Association Incorporated ("the applicant") seeks a declaration that development consent no 31/1996 ("the consent") issued by the second respondent ("the council") to the first respondent ("Tomies Timber") on or about the 29 August 1996 is void and of no effect. The consent authorises the land known as lots 114 and 115, DP 752810 at Orara Downs Lane, Levenstrath ("the land") to be used for the purposes of a sawmill. The challenge is made upon the technical grounds detailed hereunder. 2. The council has taken no part in the hearing other than filing a defence and has submitted to any order the Court might make other than costs. Tomies Timber has also made no submissions other than on the question of costs. Preliminary Issue 3. In its defence the council raises a threshold issue of law, namely that the proceedings are incompetent in consequence of the provisions of s 104A of the Environmental Planning and Assessment Act 1979 ("the Act") as it then existed (now s 101 of the EP&A Act). Section 104A provided:- 104A In the event that public notice of the granting of a consent is given in accordance with the regulations by a consent authority, the validity of the consent shall not be questioned in any legal proceedings except those commenced in the Court by that person at any time before the expiration of 3 months from the date on which public notice was so given. Accordingly it is necessary to consider whether such section operates as a bar to these proceedings. 4. The notification of the grant of the consent (hereafter referred to as "the notice") was published in the Daily Examiner newspaper on 14 September 1996. Regulation 81 (as it existed, now reg 74) of the Environmental Planning and Assessment Regulation 1994 ("the Regulations") provided:- 81. The granting of a development consent is publicly notified for the purposes of section 104A of the Act:- (a) if public notice in a local newspaper is given by the consent authority or, if the consent authority is not the council, by the consent authority or by the council; and (b) if the notice describes the land and the development the subject of the development consent; and (c) (not relevant) 5. The applicant submits that the published notice failed to comply with reg 81(b) because it did not adequately describe the land. The notice merely described the relevant file number, the owner, the location of the land as "Coutts Crossing" and the purpose of development as a sawmill. Coutts Crossing is a hamlet near to the land. 6. This Court has already determined in Wilson v Irongates Pty Limited (Stein J, unreported LEC 40172 of 1996) that strict compliance with the public notification requirements of the Act is essential. Public participation is central to the process of development approval provided in the Act: see Johnson v Lake Macquarie City Council & Anor (1996) 91 LGERA 331 at 341. The process of public participation is subverted if public notification pursuant to the Act is misleading or incomplete: Canterbury District Residents & Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317 at 320 ; Litevale v Lismore City Council (1997-1998) 96 LGERA 91 at 110- 111; see also Scurr v Brisbane City Council (1973) 133 CLR 242 at 255, 257-258 7. Regulation 81(b) requires that ' the notice describes the land' . This requirement is not satisfied by stating the location of the land as "Coutts Crossing". It is apparent that the terms of the notice did not satisfy regulation 81(b). It follows that the provisions of s 104A of the Act do not operate to prevent the institution and maintenance of these proceedings. Validity of conditions of consent 8. At the date of the consent, the land was affected by the provisions of the Nymboida Local Environmental Plan 1986 ("the LEP"). Pursuant to the LEP, the land was zoned 1(b)(General - Rural). In such zone the development of a sawmill was permissible only with development consent. 9. The applicant contends that the development application for the sawmill ought to have been determined as an application for designated development as referred to in reg 49 of the Regulations (now reg 53C). Schedule 3 of the Regulations (which remains unchanged) specifies the criteria which determines whether uses, including that of sawmills, is to be classified as designated development. Schedule 3 includes the following definition, "the definition":- Wood or timber milling or processing works (other than a joinery, builders supply yard or home improvement centre) that saw, machine, mill, chip, pulp or compress timber or wood and: (1) have an intended production capacity of more than 4000 cubic metres per annum of sawn timber or timber products and: (a) are located within 500 metres of a dwelling not associated with the milling works; or (b) are located within 40 metres of a natural waterbody or wetlands; or (c) burn waste (other than as a source of fuel); or (2) have an intended production capacity of more than 30,000 cubic metres per annum of sawn timber or timber products. If the criteria contained in the definition of Schedule 3 are satisfied, Tomies Timber was required pursuant to s 77(3)(d) of the Act (now 78(3)(d)) to provide an environmental impact statement. 10. The evidence establishes that a cottage being the property of Mr Jack Doherty is located within 500 m of the sawmill. Accordingly, sub-paragraph (a) of the definition is satisfied. Furthermore, the plan lodged with the development application included the site of a fire pit, thereby satisfying sub-paragraph (c) of the definition. The only remaining factor required to fulfil the definition is the intention that the production capacity of the sawmill exceeds 4,000 m3 of timber annually. Unless this requirement is satisfied, it cannot be said that such development comprises 'designated development'. If the intended production capacity was to exceed 30,000 m3 per annum of sawn timber or timber products, this fact would by itself, be sufficient to render the sawmill development, 'designated development'. 11. The consent does not limit the intended annual production capacity of the sawmill and there is no evidence before the Court which indicates the intended annual production capacity of such mill. The consent therefore authorises a development, namely a sawmill, but simultaneously a designated development. As such, the consent is uncertain. Uncertainty of consent 12. If a condition of consent is so uncertain as to leave open the possibility that compliance therewith may alter the nature of the development for which the application was made, the consent is invalid: Mison v Randwick Municipal Council & Ors (1991) 23 NSWLR 734 at 737; Scott & Ors v Wollongong City Council & Anor (1992) 75 LGRA 112 at 117. In these proceedings it is the absence of condition of consent that could alter the nature of the development, namely from a development per se to a designated development. 13. The uncertainty arises solely as a result of the absence of any limitation in the consent restricting the intended capacity of production of timber to be processed, which authorises the applicant to operate both below and above the definitive level of 4000 m3 of timber per annum. 14. In Television Corporation Ltd v The Commonwealth of Australia & Anor (1962-1963) 109 CLR 59, Kitto J at 69, 70, 71 explained the need for certainty when conditions are imposed upon a television licence issued pursuant to the provisions of the Broadcasting and Television Act 1942-1960. His Honour observed that a condition should have a dual function enabling a licensee to know that its conduct complied with the conditions attaching to a licence and enabling the regulator, namely the Minister, to recognise any non-compliance therewith. His Honour said at 70:- A specification cannot, I think, fulfil this dual function if it is so vaguely expressed that either its meaning or its application is a matter of real uncertainty;… The principle expounded by Kitto J is apposite to the present circumstances. 15. The intended annual production capacity of a sawmill is one of the criteria provided by the Regulations to differentiate designated development from development. In the absence of a condition limiting the production capacity of the sawmill the consent is uncertain, since it permits the first respondent's sawmill to operate without an ascertainable and enforceable standard as required by the Regulations. Accordingly the classification of first respondent's development cannot be ascertained with precision. Thus council has not issued the consent pursuant s 91 of the Act: Mison v Randwick Municipal Council & Ors (1991) 23 NSWLR 734 at 737. Consent 31/1996 is therefore invalid. Costs 16. Each party has made its submissions as to costs. The first respondent seeks an order that it be indemnified by the second respondent in respect of any costs awarded against it, and the second respondent opposes any order for costs being made against it. Neither respondent has taken any active part in the hearing, except to oppose costs orders being made against them. 17. The Court has a wide discretion to award costs pursuant to s 69 of the Land and Environment Court Act 1979. The principles which guide the exercise of the Court's discretion have been considered by the High Court of Australia in Oshlack v Richmond River Council (1998) 193 CLR 72 at 81-89 (per Gaudron and Gummow JJ); at 95-104 (McHugh J); at 120-127 (Kirby J). Ultimately this Court has virtually no limit on the discretion to award costs provided such discretion is exercised judicially. 18. The declaration and orders set out hereunder affect both respondents and arise from the inadequacy of the conditions attached to the first consent. Since the first respondent has not been responsible for such conditions, no order for costs will be made against it. However the applicant as the successful party is entitled to an order that its costs be paid by the second respondent. Orders 19. Following the institution of these proceedings, Tomies Timber filed a fresh class one application seeking development consent to increase the output of the mill to 4,000 m3. Such application ultimately came before this Court by way of appeal: see Walker & Newton v Nymboida Shire Council [1999] NSWLEC 272. In such proceedings this Court upheld the appeal subject to numerous conditions, several of which related to environmental concerns which had not been the subject of any conditions attaching to consent 31/1996. Accordingly Tomies Timber presently has the benefit of two development consents, the more recent permitting the processing of timber up to 4,000 m3 per year but with conditions which were not included in the earlier consent. 20. The Court makes the following declaration and orders:- 1. A Declaration that Development Consent 31/1996 for the use of Lots 114 and 115 DP752810 at Orara Downs Lane, Levenstrath for the purposes of a sawmill issued by the Nymboida Shire Council to J & J Toms trading as Tomies Timber on or about 29 August 1996 is void and of no effect. 2. An Order that the first respondent by themselves, their servants and agents be restrained from using the land being Lots 114 and 115 DP752810 at Orara Downs Lane, Levenstrath for the purposes of a sawmill pursuant to Development Consent 31/1996. 3. An Order that the first respondent be granted leave to apply to the Court upon the ground of hardship to postpone the operation of Order 2 provided any application is made within 7 days from the date of judgment. 4. An Order that the second respondent pay the costs of the applicant as agreed between the parties, or otherwise as assessed. 5. The exhibits be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.