Land and Environment Court of New South Wales CITATION : Miller v Sutherland Shire Council [2007] NSWLEC 700 APPLICANT: John Miller FIRST RESPONDENT: Sutherland Shire Council PARTIES : SECOND RESPONDENT: Anthony Kenneth Fairclough THIRD RESPONDENT: Martina Fairclough FOURTH RESPONDENT: Catherine Smythe trading as Brook & Byrne Waterfront Constructions FILE NUMBER(S) : 40525 of 2007 CORAM: Biscoe J KEY ISSUES: Judicial Review :- validity of development consent - failure to notify development application in accordance with provision of a development control plan as required by s 79A(2) of the Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 79A(2), 101 Land and Environment Court Act 1979 s 25B CASES CITED: Doueihi v Canterbury City Council (2003) 133 LGERA 138; Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 DATES OF HEARING: 11 and 12 October 2007 EX TEMPORE JUDGMENT DATE : 12 October 2007 APPLICANT: Mr P R Clay and Mr R O'Gorman-Hughes, barristers SOLICITORS: Haydon Fowler Corbett Jessop LEGAL REPRESENTATIVES: SECOND,THIRD AND FOURTH RESPONDENTS: Mr T Rickard, barrister SOLICITORS: Simmons & McCartney JUDGMENT: - 4 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 12 October 2007 40525 of 2007 MILLER v SUTHERLAND SHIRE COUNCIL & ORS EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a challenge to the validity of a development consent granted on 29 June 2004 by Sutherland Shire Council, the first respondent, to the construction of a jetty and associated ramps and steps which would service the second and third respondents' waterfront residential property at 20 Moombara Crescent, Lillii Pilli. 2 At all material times the applicant and his wife have been the second and third respondents' next door neighbours and the owners of 22 Moombara Crescent, Lilli Pilli. On 12 September 2003 a development application was lodged by the fourth respondent for a shared jetty and associated steps and ramps on the applicants' property, the second and third respondents' property and the land below mean high water mark adjacent to both properties. 3 Development consent was required pursuant to the Sutherland Shire Local Environmental Plan 2000. The Statement of Environmental Effects lodged in support of the application stated that with the application was a copy of a written consent from Mr Miller (the applicant in these proceedings), as owner of 22 Moombara Crescent, for the shared structure. In fact no such consent was attached. 4 On 16 September 2003 the council wrote to the fourth respondent requesting that she provide the authorisation of the owners of the applicant's property to the lodgement of the development application. The application was subsequently amended on 9 October 2003 to delete the applicant's property from the description of the land proposed to be developed. As I have said, on 29 June 2004 the council purported to grant consent. 5 Condition 1 of the consent required the development to be implemented in accordance with three specified plans. There appear to be inconsistencies between two of those plans as to the precise location of the jetty. 6 There are a number of grounds of challenge to the validity of the consent. The hearing of the matter proceeded before me yesterday morning and then was adjourned to give the parties the opportunity to have the matter mediated that afternoon. The mediation was successful. The parties and others have signed short minutes of order which contain their proposed relief comprising a declaration that the development consent is void and of no force or effect, consequential or related consent declarations and orders, and certain agreements. 7 Declarations as to invalidity cannot, however, be made by consent but only on the basis of evidence and submissions. It is for that reason that I have recounted the evidence of the background facts. No doubt because of the consensus recorded in the proposed short minutes of order, I have only to take into account the submissions of the applicant which are not contested. 8 It is sufficient to refer to only one of the grounds of challenge to the consent, namely, that there was a failure to notify the applicant and the applicant's wife of the development application as required by s 79A(2) of the Environmental Planning and Assessment Act 1979, which relevantly provides: (2) A development application for specified 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. 9 The development application, as amended, related to the respondent's property. Council's development control plan required notification of the application to the applicant and his wife, who were recorded on the council's rate and property register as owning the land immediately adjoining the second and third respondents' property. They were not notified as required. It is not contested that failure to notify a development application in breach of s 79A renders consent to that application void: Doueihi v Canterbury City Council (2003) 133 LGERA 138 at [26]. 10 The time bar in s 101 was pleaded as a defence but is now not pressed. Section 101 provides that "If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given". The applicant submits without contest, and I accept, that s 101 does not apply to this ground of challenge: Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 at [79]. 11 No reason under s 25B of the Land and Environment Court Act 1979 or any other discretionary reason has been pressed as to why I should not grant the relief that is sought. I am satisfied on the material before me and in the way that the case has developed, that it is not appropriate to make any order under s 25B nor to exercise the discretion against the granting of the relief upon which the parties have agreed. 12 Accordingly, the Court makes, by consent, declarations and orders in accordance with paragraphs 1, 1A, 2, 3, 4, 5, 6 and 7 of the short minutes of order dated 12 October 2007, signed by or on behalf of the parties and others, initialled by me and placed with the papers. I note the undertaking of the second and third respondents in paragraph 8 and the agreements referred to in paragraphs 9 and 10 of the short minutes of order. 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.