Land and Environment Court of New South Wales CITATION : Hawkesbury City Council and Another v Sammut [2000] NSWLEC 246 FIRST APPLICANT: Hawkesbury City Council PARTIES : SECOND APPLICANT: John Hagar RESPONDENT: Daniel Sammut FILE NUMBER(S) : 40202 of 1999 CORAM: Talbot J KEY ISSUES: Development Application :- whether practice or policy of notification gives rise to expectation of notice - extent to which notice issued satisfies obligation to notify and invite submissions LEGISLATION CITED: Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council & Anor (1991) 73 LGRA 317; Egan & Ors v Hawkesbury City Council & Anor (1993) 79 LGERA 321; CASES CITED: Hardi v Woollahra Municipal Council & Wasserman (Cripps J, NSWLEC, 17 December 1987, unreported); Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91; Rapid Transport Pty Ltd v Sutherland Shire Council & Ors (1987) 62 LGRA 88; Somerville v Dalby & Ors (1990) 69 LGRA 422 DATES OF HEARING: 16/11/2000, 17/11/2000 DATE OF JUDGMENT: 11/30/2000 FIRST APPLICANT: Mr G B Newport (Barrister) SOLICITORS: Abbott Tout SECOND APPLICANT: Mr G J Kennedy (Barrister) with Ms N Gilchrist (Barrister) LEGAL REPRESENTATIVES: SOLICITORS: Axtens & Co RESPONDENT: Mr P C Tomasetti (Barrister) SOLICITORS: Storey & Gough JUDGMENT: IN THE LAND AND Matter No. 40202 of 1999 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 30 November, 2000 Hawkesbury City Council First Applicant John Hagar Second Applicant v Daniel Sammut Respondent REASONS FOR JUDGMENT The background to and nature of the proceedings 1. These proceedings are unusual in the sense that Hawkesbury City Council seeks to have a development consent granted by it on 15 January 1999 declared void. 2. The respondent lodged Development Application No M609/98 with the applicant council on 2 November 1998. 3. The application described the development as "Farm Shed - for home activity repair of farm machinery" . 4. The second applicant is the owner and resident of an adjoining property. 5. A letter notifying the second applicant that the development application had been received and inviting submissions described the proposed development as "home activity" . 6. The notice of determination of the development application issued on 15 January 1999 notified the respondent that the council consented to "A rural industry - repair of farm machinery" . 7. The commencement of construction works on the site generated a number of inquiries and objections from surrounding residents, including some who had not made submissions by way of objection to the original development application. Meetings and correspondence with the respondent followed whereby the respondent was requested to comply with conditions of the consent. 8. Finally, on 18 November 1999 the council wrote to the respondent notifying that it was withdrawing the consent to the application for rural industry for repair of farm machinery. The respondent was reminded in that letter that recent legal advice to council was that rural industries are prohibited in a 1(c) zone and that if he continued to carry out work in accordance with the development consent, which had been withdrawn, the council would seek declarations that the consent is invalid and orders that the land be restored to its natural state. 9. Presumably the recent legal advice referred to in the letter was a reference to the consequences of the decision of the Court of Appeal in Egan & Ors v Hawkesbury City Council & Anor (1993) 79 LGERA 321. 10. These proceedings were commenced by an application filed on 24 November 1999. 11. On 2 August 2000 the Minister for Urban Affairs and Planning made State Environmental Planning Policy No 30 - Intensive Agriculture (Amendment No 4). 12. Justice Cowdroy granted an application for an interlocutory injunction on 31 August 2000. 13. On 25 September 2000 Cowdroy J decided that SEPP 30 had retrospective effect and that accordingly the development was not prohibited at the date of grant of consent on 15 January 1999. 14. On 5 October 2000 Justice Cowdroy joined the second applicant as an applicant in the proceedings. The facts 15. The second applicant, John Hagar, told the Court that the respondent produced a piece of paper to him at his home on 1 November 1998. Mr Sammut asked him to sign it. Mr Hagar says that when he did so he believed he was granting permission for Mr Sammut to build a shed. He did not read the document. 16. Mr Sammut had earlier spoken to Mr Hagar's wife. Mrs Hagar did not give evidence. Mr Hagar explained that his wife is not in good health. 17. Mr Hagar claims that when he signed the document and purported to agree to the erection of a farm shed he had in mind a farm shed that could house a tractor, horse float and ride on mower. He contemplated a shed of the size equivalent to a four car garage. 18. Mr and Mrs Hagar received a letter from the council dated 16 November 1998. In that letter they were advised that council had received an application for a home activity on the neighbouring property and that all plans and details of the proposal may be inspected at council offices at Windsor. The letter also advised that matters such as privacy, overshadowing and impact on adjoining owners are a normal part of the council assessment and that a submission by Mr and Mrs Hagar would be taken into account if they chose to make one. 19. Mr Hagar did not attend at council offices to inspect the proposal or to talk to the assessing officer in response to the invitation in the letter dated 16 November 1998. 20. It was only after construction work commenced that the second applicant was moved to notify council that he and his wife were no longer in agreement with the proposed development and industry to be carried out by the respondent. The respective arguments by the parties 21. The council concedes that notwithstanding the description of the purpose of the development in the development application itself the description of the proposed development as "home activity" is wrong as being inconsistent with the definition in the relevant LEP. 22. The amended points of claim filed on behalf of the council assert that the consent is void because, inter alia:- (a) the second applicant was not notified of the proposed development being the erection of a shed for the repair of farm machinery and therefore were (sic) denied procedural fairness; (b) In the alternative the notification to the second applicant dated 16 November 1998, describing the proposed development as being for a home activity , was misleading and therefore he was denied procedural fairness. 23. Ultimately those are the only issues remaining in the case as it is recognised by all parties that Cowdroy J has finally determined that a grant of development consent for a rural industry was not prohibited following the making of SEPP 30. 24. The council did not pursue a claim that the development application was invalid because it was not accompanied by an eight point test as required under s 5A of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). As a result the council was not able to give proper consideration as to whether there was likely to be a significant effect on threatened species, populations or ecological communities, or their habitats. Evidence in support of this claim was rejected for technical reasons leaving the council argument in this respect unsubstantiated by any facts. 25. The critical question to be determined therefore is whether the notification given to the second applicant on 16 November 1998 was sufficient to meet any obligation to afford Mr Hagar procedural fairness before the application was determined. 26. The council produced a random bundle of documents said to be taken from its files in support of its argument that notification of the receipt of a development application is as a matter of practice, given to adjoining owners. 27. These documents suggest that a notice of receipt of a development application was given as follows:- 7 December 1995 Six lot community title subdivision 6 July 1998 Home activity - beauty salon 15 September 1998 Bed and breakfast 12 October 1998 Jetty 28. None of the development applications referred to have any relevance to the subject site. They are presumably relied upon as examples of the usual notification given to neighbours. 29. No other explanation is furnished in regard to the council's practice. 30. A general statement concerning council's practice of notification of applications for development to adjoining owners was disallowed as the respondent quite properly demanded that the council's practice, if there was one, should be proved formally. The council has attempted to meet the requirement for formal proof by producing the random documents described above. The council, as the moving party, bears the onus of establishing there is in fact a practice to notify adjoining owners that an application for development consent has been received. 31. The council case supporting the practice of sending out notices is not a strong one. The inference that such a practice existed at the relevant dates should not be drawn lightly. 32. Although the range of documents produced out of other files is limited there is nevertheless the uncontested evidence that the council did notify Mr and Mrs Hagar in the letter dated 16 November 1998 that an application for a home activity on the subject property had been received. 33. It must be borne in mind that the issue that falls within jurisdiction is whether the development consent issued by the council is valid and not whether the respondent misrepresented the application for development consent to the second applicant. 34. Mr Newport, on behalf of the council, relied on observations made by the Court of Appeal in Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 and by Stein J in Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council & Anor (1991) 73 LGRA 317. These cases dealt with misleading and defective notices given pursuant to a statutory obligation. 35. It is said on behalf of the council that the notice in the letter dated 16 November 1998 contained incomplete and inaccurate information thereby giving rise to an impression that the development would not be such that could adversely affect the amenity and interests of the second applicant. Thus, by referring to a home activity the notice was misleading and wrong. 36. A home activity is defined in Hawkesbury LEP 1989 as follows:- home activity means any activity, pursuit, occupation or profession not specifically defined elsewhere in this clause, carried on for personal gain in a building or a room or a number of rooms forming part of, attached to or on the same parcel of land as a dwelling-house or in a dwelling in a residential flat building where (a) only goods made or produced therein as a result of the activity or pursuit and goods ancillary thereto are displayed or sold; and (b) the activity or pursuit does not - (i) interfere with the amenity of the locality by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil or otherwise; (ii) involve exposure to view from any public place of any unsightly matter; (iii) require the provision of any essential service main of a greater capacity than that generally available in the locality; (iv) involve the employment of persons other than residents of the dwelling-house or dwelling; or (v) involve the exhibition of any notice, advertisement or sign (other than a notice or sign not exceeding 1 metre by 0.6 metres exhibited on that dwelling-house or dwelling to indicate the name and occupation of the resident thereof); 37. Although Mr Hagar did not appreciate or have any understanding of the legal definition contained in the LEP it is submitted on behalf of the applicants that the description itself was sufficient to mislead the second applicant about the true nature and extent of the proposed development. In any event, the council did not approve a home activity. In the course of its deliberations it determined that the correct description was a rural industry and proceeded to grant approval accordingly. 38. In Rapid Transport Pty Ltd v Sutherland Shire Council & Ors (1987) 62 LGRA 88 it was conceded that the council had no practice of notifying adjoining owners or occupiers of development and building applications except where there was a statutory requirement to give notice. Stein J observed at 94 that in his opinion there is much to be said for the argument that the legislation comprising the EP&A Act and relevant planning instruments provides a code for the right to be heard in the determination of applications and that the legislature has effectively precluded any room for implication of the requirement of the giving of notice and the right to be heard in applications such as the present. In that case his Honour decided that an implication did not arise from the common law particularly in the light of the administrative practice of the council. 39. There being nothing in any relevant planning instrument or draft planning instrument requiring notification by Hawkesbury Council, Mr Tomasetti submitted on behalf of the respondent that there was no obligation placed upon council to give notice in the context of the present case although in other circumstances set out in the legislation including the planning instruments but not presently relevant it was required to do so. The council does not rely on any statutory obligation to notify receipt of a development application and to invite submissions. 40. The fact that one of the letters produced by council dealt with the entirely disparate circumstance where submissions were invited for the purpose of supporting council's case in an appeal against the refusal of development consent for a brothel serves to demonstrate that if there is a policy or practice which the council deems to follow it is vague and amorphous. 41. Hemmings J relied upon the authority of Rapid Transport and Hardi v Woollahra Municipal Council & Wasserman (Cripps J, NSWLEC, 17 December 1987, unreported) to find in Somerville v Dalby & Ors (1990) 69 LGRA 422 that it was then well established in this Court that the regular application of a policy by a consent authority to give notice to adjoining owners of applications for development consent would give rise to an enforceable expectation that such notice would be given, and representations made, if any, would be considered before determination of the application. That understanding of the Court's application of the principle has, so far as I am aware, been maintained since the decision in Somerville . 42. Although the evidence in this case is not entirely satisfactory, after careful consideration, it is, in my opinion, sufficient to show that on the balance of probabilities the council did have a practice of notifying the receipt of development applications to an adjoining owner and that in so notifying Mr and Mrs Hagar it was acting in accordance with that practice. 43. Notwithstanding the lack of direct evidence of how the development came to be described as a home activity in the development application, it nevertheless is the fact that the council received a development application describing the proposed use as a farm shed - for home activity, repair of farm machinery. 44. Admittedly a full description was not provided in the notice to the adjoining owners but nevertheless part of the description was included in the notice and the letter made it abundantly clear that all plans and details of the proposal could be inspected. Moreover, the addressee was expressly invited to do so and thereafter to submit written comments. In the context of the letter it is clear that if following inspection the addressee had any concerns about the proposal the matter could have been fully discussed with the assessing officer. 45. It is no fault of the council that Mr Hagar made a mistake by failing to respond to the invitation. If he had done so, then presumably he would have been better informed. At the very least he would have become appraised of discrepancies, if any, between his understanding of the proposal after the discussions with the respondent and the detail in the application submitted. 46. It is inconceivable that Mr Hagar did not have an understanding that Mr Sammut intended to apply to the council for consent to the erection of a farm shed. By signing the paper presented to him by the respondent he embraced the concept, even though he did not bother to read the document. 47. Furthermore, having received a formal notification of the lodgment of a development application it was thereafter incumbent upon the second applicant to take the matter further by responding to the invitation even if only to check that the understanding he had following the discussion with Mr Sammut was correct. 48. The purpose of the notice from the council was to alert Mr and Mrs Hagar to the receipt of an application. The letter made it clear that the notification contained therein was not intended to be all encompassing and that if further particulars were required they could be supplied by attending the council offices to inspect the development application itself and if necessary to discuss the proposal with the relevant officer. 49. There is no suggestion of any established practice, procedure or policy on the part of the council to renotify an application following any changes made to a proposal. Nor, more relevantly to the present circumstances, is there evidence of such a practice where the description of the development is subsequently moulded to reflect a proper categorisation of the proposal. The only evidence that there was any practice or procedure in place relates to the notification of the receipt of an application. The council clearly satisfied any expectation in that regard by forwarding the letter dated 16 November 1998. The public promise to provide the opportunity for the adjoining owner to make submissions was thereby fulfilled. 50. Having decided that there is no breach of any obligation to provide procedural fairness on the part of the council to the second applicant it is not necessary to deal with the respondent's reliance upon an estoppel against the council asserting that the development consent granted by it is void. Likewise, it is unnecessary to deal in any detail with the issue of whether the Court should exercise its discretion not to make any orders. 51. In regard to discretion the respondent asserts that the Court should not in the circumstances of this case grant relief for the following reasons:- (i) The fact that the first applicant notified the neighbours of the receipt by it of the development application; (ii) The fact that the second applicant was given notice of the development application by the first applicant and the respondent; (iii) The fact that the second applicant did not object to the development application; (iv) The fact that the respondent relied upon the consent and incurred expense in purchasing the shed and undertaking work on the land; (v) The first applicant gave approval for removal of vegetation from the respondents land and participated in the marking of 40 trees approved for removal; (vi) The fact that the first applicant delayed in seeking the relief in the amended application filed herein; (vii) The fact that the shed has now been erected; (viii) The fact that it would be harsh, unjust and unconscionable to declare the development consent void in the aforesaid circumstances. 52. The Court recognises that if it had been satisfied the consent was invalid there would be a strong foundation for the exercise of its discretion not to make orders after having regard to the whole of the circumstances of this case. But as I have already said it is not necessary to make any final determination in that regard. 53. The effect of the Court's decision is that the application will be dismissed. 54. The question of costs has not been argued. Having regard to the late joinder of the second applicant it is appropriate that the question of costs be reserved. Orders 55. The formal orders of the Court are:- 1. Application dismissed. 2. Costs reserved. 3. The exhibits may 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.