Reported Decision : (1999) 104 LGERA 125 Land and Environment Court of New South Wales CITATION: Cross CJ v Hornsby Shire Council [1999] NSWLEC 126 PARTIES APPLICANT Cross CJ RESPONDENT Hornsby Shire Council NUMBER: 00005 of 1998 CORAM: Cowdroy AJ KEY ISSUES: Development :- application to modify pursuant to s 96 of the Act in respect of two conditions imposed upon the development consent - council issuing notice of determination of the application in purported fulfilment of regulation 73A - council omitting to refer to one of two matters - notice failing to inform the applicant of the right of appeal - requirements of regulation 73A not fulfilled - requirements mandatory - Notice invalid. Environmental Planning & Assessment Act 1979, s 96(2), s 97(1) LEGISLATION CITED: Environmental Planning & Assessment Regulations 1994, reg 73A Local Government Act 1919, s 342ZA DATES OF HEARING: 05/27/1999 DATE OF JUDGMENT DELIVERY: 06/08/1999 APPLICANT Mr A Hyam SOLICITORS n/a LEGAL REPRESENTATIVES: RESPONDENT Mr G McKee SOLICITORS McKees Legal Solutions JUDGMENT: Background 1. The applicant is the owner of land premises known as 72 Somerville Road, Hornsby Heights. On 15 May 1996 Hornsby Shire Council ("the council") granted development consent (No. 26/95) for subdivision of such land being Lot 4 DP 28928 into three allotments. Such consent was embodied in council's Notice to Applicant dated 28 May 1996 which incorporated numerous conditions. One condition (no. 24) required the retention of certain trees and another condition namely, condition 25 provided:- A restriction - as to user - shall be created for Lot 3 limiting future development to single storey. 2. On 28 September 1998 the applicant applied to the council pursuant to s 96(2) of the Environmental Planning and Assessment Act 1979 ("the Act") to modify the above consent by seeking amendment to condition 24 to permit the removal of two trees and the deletion of condition 25. A town planner's report made a recommendation concerning condition 24 but suggested a consideration of condition 25 be deferred until a future occasion when an application might be lodged for development on Lot 3. 3. By letter dated 22 September 1998 the council forwarded a copy of its Notice to Applicant ("the notice") concerning its determination. The notice referred to the amendment to condition 24 but made no reference to condition 25 of such consent. Nor did the notice refer to the applicant's entitlement to appeal. 4. On 11 March 1999 the applicant filed an application Class 1 seeking an extension of time in which to appeal against the apparent refusal of council to delete condition 25 from development consent No.26/95. The applicant submits the notice provided to him which accompanied the council's letter of the 22 December 1998 is invalid and he therefore has a potential right of appeal. Alternatively the applicant says that he is entitled to appeal at any time within twelve months of the date of the grant of consent pursuant to s 97(1) of the Act, such period commencing on 22 September 1998. Such submission is predicated upon the basis that his application for modification constitutes a development consent. Adequacy of the Notice 5. Regulation 73A of the Environmental Planning and Assessment Regulation 1994 ("the Regulations") requires notification to be given as follows:- 73A (1) Notice in writing of the determination of an application for the modification of a development consent must be given to the applicant as soon as practicable after the determination is made. (2) If the determination is made subject to conditions or by refusing the application, the notice: (a) must indicate the consent authority's reasons for the imposition of the condition or the refusal, and (b) must state that the Act gives a right of appeal against the determination, unless (i) the development is State significant development, or (ii) the development consent was granted by the Court. 6. In Scurr v Brisbane City Council (1974-75) Vol 133 CLR 242 the High Court of Australia decided that a provision which required advertising in respect of certain development was not satisfied by the published notice. Stephen J said (at p252):- Accordingly inadequacy of public notice renders nugatory the twin purposes of s.22, of assisting the council to fulfil its task as a responsible planning authority and of providing those who may be affected by the granting of applications with opportunity to exercise their statutory rights of objection and appeal. 7. This decision has been referred to and adopted by the Court of Appeal of New South Wales in Cambridge Credit Corporation Limited & Anor v Parkes Development Pty Limited (1974) 2 NSWLR 590 at 614 (CA) and by this Court in Davenport v Waverley Municipal Council & Ors (1980-82) 46 LGRA 97 at p104. Each of these decisions related to the provisions of s 342ZA of the Local Government Act 1919 which required written notice of a determination under that Act. The question is whether the requirements of reg 73A are also mandatory. 8. In Hatton v Beaumont (1978) 52 ALJR 589; 20 ALR 314, the High Court of Australia considered the circumstances in which a procedural requirement was to be regarded as mandatory, and determined that the statutory context provided guidance. Such approach is consistent with the principle referred to in Howard v Bodington (1877) 2 PD 203 at 211 and adopted in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24 (CA), which confirmed that consideration of the context and construction of the statutory instrument is relevant to determine the legislative effect of an enactment. Maxwell on Interpretations of Statutes, 12th Ed. at pp 234-235 observes as follows:- In ordinary usage, "may" is permissive and "must" is imperative.... 9. Part 6 of the Regulations prescribes procedures relating to development applications. It provides detailed and comprehensive machinery to ensure that development applications are made in an orderly manner and to enable a person affected by an application to be informed thereof. If the development application is to be made the subject of conditions or if it is to be refused, an applicant may have important appeal rights. The requirements of reg 73A are designed to inform an applicant and to enable him to lodge an appeal if required. It forms a critical part of the development application process. The use of the word "must" on three occasions in reg 73A renders its requirements mandatory. The failure of the notice to refer to council's decision concerning condition 25 and to the right of appeal renders it invalid. 10. It is unnecessary to consider the other ground relied upon by the applicant in view of this finding. Since the applicant is prepared to accept that the council intended to refuse his request for the deletion of condition 25, it will be necessary for council to serve a notice which complies with the requirements of reg 73A. I should add however, if council has not applied its corporate mind to the request at all, it would be necessary for council to do so in order to fulfil its obligation required by reg 73A(2)(a). Orders 11. The court declares:- 1. The Notice to Applicant dated 22 December 1996 issued by the respondent to the applicant is invalid. 2. 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.