Land and Environment Court New South Wales Medium Neutral Citation: Brown v Randwick City Council [2011] NSWLEC 172 Hearing dates: 13 and 14 September 2011 Decision date: 14 September 2011 Jurisdiction: Class 4 Before: Preston CJ Decision: The Court: 1. Declares that the determination of Randwick City Council on 11 November 2008 granting consent to development application DA 441/2008 for a new swimming pool and deck to rear of existing dwelling at 15 Seaside Parade, South Coogee, is invalid. 2. Declares that the notice of determination dated 20 November 2008 issued by Randwick City Council is invalid. 3. Reserves the question of costs. Catchwords: JUDICIAL REVIEW - development consent for swimming pool and deck - determination of development application by council delegate by refusing consent - notification of first determination not sent - subsequent determination by council as collegiate body by granting consent - notification of subsequent determination sent - no revocation, rescission or review of first determination before making subsequent determination - power to determine development application spent by first determination - subsequent determination and notification outside power - alleged failure to consider relevant matters, manifest unreasonableness and failure to notify adjoining owners not established - privative clause does not protect subsequent determination from jurisdictional error - subsequent determination to grant consent and notification declared invalid Legislation Cited: Environmental Planning and Assessment Act 1979 s 79A, s 80, s 81, s 82A, s 83, s 101 Land and Environment Court Act 1979 s 25B Environmental Planning and Assessment Regulation 2000 cl 124 Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Bechara v Plan Urban Services [2006] NSWLEC 594; (2006) 149 LGERA 41 Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317 Hamod v Minister for Urban Affairs and Planning [2009] NSWLEC 24 Kirk v Industrial Relations Commission [2010] HCA 1; (2010) 239 CLR 531 Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207 Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 MacKinnon v Henry & Leichhardt Municipal Council, (Land and Environment Court of New South Wales, 12 March 1997, unreported) Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 Panagopoulos v Willoughby City Council (1992) 78 LGERA 270 Parramatta City Council v Hale (1982) 47 LGRA 319 Pselletes v Randwick City Council [2009] NSWCA 262; (2009) 77 NSWLR 287 R v Hickman; Ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598 Save Our Street Inc v Settree [2006] NSWLEC 570; (2006) 149 LGERA 30 Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740 Somerville v Dalby (1990) 69 LGRA 422 Townsend v Evans Shire Council (2000) 109 LGERA 336 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 Category: Principal judgment Parties: Roland Alwyn Brown (Applicant) Randwick City Council (First Respondent) Alan Sandilands (Second Respondent) Wallis Sandilands (Third Respondent) Representation: Mr S J Free (Barrister) (Applicant) Dr S M Berveling (Barrister) (Second and Third Respondents) Maddocks Lawyers (Applicant) Marsdens Law Group (First Respondent) Comino Prassas (Second and Third Respondents) File Number(s): 40393 of 2011 EX TEMPORE Judgment Nature of proceedings 1Mr Brown, who resides at 13 Seaside Parade, South Coogee, challenges by judicial review proceedings, the validity of the determination of Randwick City Council ("the Council") on 11 November 2008 of a development application lodged by Mr and Mrs Sandilands, for the erection of a new elevated swimming pool and deck at the neighbouring property of 15 Seaside Parade, South Coogee, by the granting of consent to the application subject to conditions and the subsequent notification of that determination. 2Mr Brown's primary ground of challenge is that the Council had no power to determine the development application under s 80 of the Environmental Planning and Assessment Act 1979 ("EPA Act") o n 11 November 2008 ("the November determination") because the Council, by its delegate, had already determined the development application under s 80 of the EPA Act on 17 September 2008 by refusing consent to the application ("the September determination"). 3The Council did not rescind or review the September determination refusing consent before purporting to make the November determination granting consent to the application. 4Alternately, if the Council did have power to determine the application in November 2008, Mr Brown claims that the exercise of power in November 2008 miscarried in three respects: first, the Council failed to consider relevant matters, under cl 8 of State Environmental Planning Policy No 71 Coastal Protection ("SEPP 71"), cl 29 of Randwick Local Environmental Plan 1998 ("LEP") and cl 4.4 and cl 4.9 of the Randwick City Council Dwelling Houses and Attached Dual Occupancies Development Control Plan ("Dwellings DCP"); secondly, the Council's determination to grant consent was manifestly unreasonable (in the Wednesbury sense, named after Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 ); and thirdly, the Council failed to notify the development application in accordance with provisions of Randwick City Council Development Control Plan Public Notification of Development Proposals and Council Plans ("Notification DCP"). 5The Council filed a submitting appearance. Mr and Mrs Sandilands, first, either do not admit or deny the various claims of Mr Brown; secondly, plead in defence that all of the claims are precluded by the privative clause in s 101 of the EPA Act, Mr Brown's proceedings being commenced after three months from public notice of the granting of the consent had been given; and thirdly, say the Court should not declare the November determination and notification invalid in the exercise of its discretion or pursuant to s 25B of the Land and Environment Court Act 1979 ("the Court Act" ). Conclusion 6I have determined that the applicant should succeed and the November determination and the notification of it should be declared invalid. I uphold the ground of challenge that the Council had no power to determine the development application in November 2008 because it had already determined the development application in September 2008, which September determination was not rescinded or reviewed prior to purporting to determine the development application in November 2008. I also uphold the ground of challenge that the Council failed to consider one particular relevant matter namely cl 4.4 of the Dwellings DCP. I do not uphold the remaining grounds of challenge, being failure to consider other relevant matters, manifest unreasonableness and failure to notify. 7The privative clause in s 101 is not effective to preclude judicial review on the grounds I have upheld, both of which involve jurisdictional error. 8Having regard to the nature of the grounds of challenge I have upheld, and the circumstances of the case, I do not consider it would be appropriate to decline to declare the November determination and the notification of it invalid, either in the exercise of the Court's discretion or under s 25B of the Court Act . A synopsis of the facts 9On 23 June 2008, Mr and Mrs Sandilands lodged development application DA 441/2008 with the Council to install a replacement swimming pool and a new deck. The development application was accompanied by a Statement of Environmental Effects which described the proposed development as being: "The existing swimming pool will be replaced with a new 9 m long x 3 m wide x 1.2 m deep x 32,400 litre salt water swimming pool built above and inside the existing swimming pool. A concrete deck will be built around and part of the swimming pool. The pool will be supported on columns supported in turn on the rock shelf below the existing swimming pool. The existing swimming pool will be used to house the pool pump and filter. A timber deck, with a large void in the middle, will be erected beside the swimming pool. Stairs in the deck void will be provided to allow access under the pool for installation, maintenance and servicing of the pool filters, pumps etc. as well as access to the rocks below." 10The plan showed that the new deck and new swimming pool encroached over the foreshore building line by 4 m or more. 11The Council's file records that nine premises were notified by letter of the receipt by the Council of the development application. The notification period was for 14 days, commencing on 27 June 2008 and ending on 11 July 2008. The "Referral, Notification, Advertising and request for information Checklist" for the development application recorded that the nine premises "as per attached" were notified by letter sent on 25 June 2008. A copy of one of the letters was enclosed. The attached list specifies the nine affected properties and affected persons. Of relevance to Mr Brown's challenge on the ground of failure to notify, they included Mr Brown (13 Seaside Parade), Mr Lee (12 Seaside Parade), Mr Black (14 Seaside Parade) and Mr Simpson (21 Seaside Parade). A handwritten note on the list stated: "9 properties notified letters sent 25/6/08" and was initialled. Handwritten ticks were placed next to each of the nine affected properties. The file also included a cadastral map showing the nine "notified properties" surrounding the "subject site" of the development application. 12On 16 September 2008, the Director, City Planning submitted a "Delegated Report" on the development application to the co-ordinator of the Council who had delegated authority from the General Manager of the Council to determine the development application under s 80 of the EPA Act. The author of the Delegated Report was Mr Perry Head, an Environmental Planning Officer with the Council. 13One of the topics addressed in the report was notification of the affected properties and owners. The report stated: "The owners of the adjoining and neighbouring properties were notified of the proposed development in accordance with the DCP Public Notification. No response has been received." 14After evaluating the development application in terms of relevant assessment criteria and relevant matters under the LEP and the DCPs, the Delegated Report recommended: " THAT Council's Coordinator under delegated authority from the General Manager, as the consent authority, refuse development consent under Section 80 and 80A of the Environmental Planning and Assessment Act 1979 (as amended) to Development Application No. DA/441/2008 for permission to construct a new swimming pool and deck to the rear of the existing dwelling at 15 Seaside Parade, SOUTH COOGEE for the following reasons:- 1. The proposed development does not comply with the purpose and intent of Clause 29 of the Randwick Local Environmental Plan 1998 by resulting in a detrimental and adverse visual impact upon the Foreshore Scenic Protection Area. 2. The proposed development does not comply with the objectives of Clause 4.9.2 of the Development Control Plan for Dwellings and Attached Dual Occupancy development in that the proposal does not conserve the natural form of the land and water interface and the siting and location of the development does not respect the natural characteristics of the cliff and associated coastline. 3. The proposal encroaches upon the designated Foreshore Building line and is considered to be unacceptable in its form and siting as it will create an adverse impact on the existing environmental qualities of the foreshore area." 15On 17 September 2008, the Coordinator of the Council exercised the delegated authority to determine the development application by refusing consent in the following terms: "Having considered the report of the Assessment Officer and after having taken into account Council's Local Environmental Policies and Codes I determine that the application subject of this assessment report should be determined in accordance with the recommendation. I have exercised my delegation of authority, in accordance with the instrument of delegation, to determine this application." 16Immediately below these statements, the Coordinator signed the document and dated it 17 September 2008. 17On the same day, 17 September 2008, Mr Head emailed Mr Sandilands advising that the recommendation was to refuse Mr Sandilands' development application and that: "we can give you a week to lobby your local Councillors to seek their agreement to have the application referred to a Council meeting in which you can speak at." 18Mr Head gave the names and contact details of the local councillors. 19On 22 September 2008, two local councillors, Councillors Matson and Woodsmith, inspected Mr Sandilands' property at 15 Seaside Parade. 20The Council's file has a file note recording that one of the local councillors, Councillor Matson, was given access to the Council's file for the development application on 25 September 2008. 21On 26 September 2008, three councillors requested by written notice that the development application for 15 Seaside Parade be referred to the City Planning Committee for consideration. 22On 21 October 2008, the Council held an Ordinary Council meeting. The Director, City Planning Report on the development application, authored by Mr Head, assessed the development application in very similar terms to the Delegated Report of 16 September 2008. One difference was the inclusion of a section assessing the development in terms of SEPP 71. The recommendation of the report was that the "Council as the consent authority" refuse development consent under ss 80 and 80A of the EPA Act. The three reasons given were in the same terms as the three reasons given for refusal in the recommendation in the Delegated Report that I have quoted earlier. 23The Council at its meeting on 21 October 2008 resolved that "the application be deferred to the next Planning Committee meeting to allow for the submission of amended plans." 24On 27 October 2008, Mr and Mrs Sandilands submitted an amended plan dated 7 October 2008. This showed a 4 m reduction in the deck from the rear of the property resulting in partial compliance with the foreshore building line at the north-eastern corner but non-compliance for the rest of the deck and pool. The height above ground level of the proposed development was not amended. 25The Planning Committee of the Council met on 11 November 2008. A Development Application Report was submitted to the meeting, this time authored by Mr Louis Coorey, another Environmental Planning Officer with the Council. The Development Application Report noted that the amended plans submitted still resulted in non-compliance with the foreshore building line for the deck and pool, evaluated the proposed development in terms of the LEP and SEPP 71, and concluded that "the amended proposal's bulk, height and siting should it be approved will continue to have an adverse impact on the foreshore scenic protection area." 26The Development Application Report recommended again that the Council as the consent authority refuse development consent under ss 80 and 80A of the EPA Act for the same three reasons as had been given for the recommendations to refuse consent in the two earlier reports. 27It would appear that the Council may have had draft conditions of consent available at the meeting in case the Council determined to grant consent. In the end, the Council did resolve, at its meeting on 11 November 2008, to grant development consent to the development application "to construct a new swimming pool and deck to rear of existing dwelling at 15 Seaside Parade, South Coogee", subject to the 28 conditions. 28On 20 November 2008, the Council gave notice under s 81 of the EPA Act of the determination to grant consent. 29On 2 December 2008, the Council gave public notice in a local newspaper, The Southern Courier , of a list of applications for developments that had been approved from 10 November 2008 to 14 November 2008. One of the applications listed was stated to be: "SOUTH COOGEE DA/441/2008, 15 Seaside Parade: New swimming pool." The privative clause does not protect the determination from challenge 30I will start with Mr and Mrs Sandilands' defence that s 101 of the EPA Act protects the November determination from Mr Brown's challenge to its validity. Mr Free, counsel for Mr Brown, submitted that s 101 does not protect the November determination for two reasons. First, the public notice given by the Council on 2 December 2008 in respect of the granting of development consent to this development application is not a proper notice under cl 124 of the Environmental Planning and Assessment Regulation 2000 (" EPA Regulation" ) and s 101 of the EPA Act. 31Secondly, s 101 does not operate to protect the November determination from errors of the type raised in the grounds of challenge, both on the state of the law before the High Court's decision in Kirk v Industrial Relations Commission [2010] HCA 1; (2010) 239 CLR 531, and certainly, afterwards. Dr Berveling, counsel for Mr and Mrs Sandilands contested the first submission, but accepted that the second submission may have force, at least in respect of some of the jurisdictional errors, such as that the Council had no power to make the November determination after it had made the September determination but not rescinded or reviewed it. 32I agree that s 101 of the EPA Act does not operate to protect the November determination and notification from a challenge to its validity for both reasons. 33First, s 101 is operative only if the condition stated within the section is satisfied, namely, "If public notice of the granting of a consent ... is given in accordance with the regulations by a consent authority". Clause 124(1) of the EPA Regulation provides that: "The granting of a development consent is publicly notified for the purposes of section 101 of the Act if ...", then sets out three requirements for the giving of public notice. One of these, in para (b), is that "the notice describes the land and the development the subject of the development consent". 34Hence, in order for s 101 to operate in respect to the development consent in this case, public notice needed to be given in accordance with the requirements of cl 124(1)(b) of the EPA Regulation . The development the subject of the development consent was, "new swimming pool and deck to rear of existing dwelling", at 15 Seaside Parade, South Coogee (as stated in both the Notice of Determination dated 20 November 2008 and the Council's resolution of 11 November 2008). 35The public notice on 2 December 2008, however, described the development only as "new swimming pool", omitting reference to the deck. This is a material omission. Without reference to the proposed development of the new deck, the public notice cannot be said to describe "the development the subject of the consent" so as to satisfy the requirement in s 124(1)(b) of the EPA Regulation . Public notice has, therefore, not been given of the granting of the consent for the purposes of s 101 of the EPA Act . 36Cases concerning whether a public notice which complies with the statutory requirements for giving public notice, can nevertheless be misleading, such as Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317, and Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91, are not applicable. Here, the public notice does not comply with the statutory requirements for giving public notice of the development consent. 37Secondly, even if proper public notice had been given, it would not protect the development consent from jurisdictional error. Before the High Court's decision in Kirk , a privative clause such as s 101 did not protect the development consent from judicial review for certain types of jurisdictional error. These were the three errors identified in R v Hickman; Ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598, the decision not being a bona fide attempt to exercise power, not relating to the subject matter of the legislation and not being reasonably capable of reference to the power given to the decision-maker, as well as a breach of a requirement "of such significance in the legislative scheme that it constitutes a limitation or requirement that is variously expressed in the authorities as 'essential', 'indispensable', 'imperative' or 'inviolable'": Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207 at [76]. 38In this case, the ground of challenge that the Council had no power to make the November determination to grant consent to the application, having already made the September determination to refuse consent to the application, is an error of the third kind in Hickman. The ground of challenge of failure to provide notice may fall into the inviolable restraint category of error. 39After the High Court's decision in Kirk , the full range of jurisdictional error remains subject to judicial review, notwithstanding a privative clause. A privative clause in State legislation cannot validly compromise the capacity of a State Supreme Court to exercise its supervisory jurisdiction (which is constitutionally entrenched) for review for jurisdictional error. The supervisory jurisdiction of the State of New South Wales' Supreme Court is divided between the Supreme Court and the Land and Environment Court, depending on the statute under which powers and functions have been exercised and are subject to review. A privative clause, such as s 101, may remain valid but it will be read down so as to preserve the supervisory jurisdiction to review for jurisdictional error. 40In this case, each of the grounds of challenge to the development consent and notification involved jurisdictional error. Section 101 is, therefore, ineffective to protect this consent and notification from these jurisdictional errors. The purported grant of consent when consent was previously refused 41Mr Brown's primary ground of challenge was simply stated by Mr Free. The Council could not exercise the power under s 80 of the EPA Act by determining the development application by granting consent on November 2008 because the power had already been spent by determining the development application by refusing consent on 17 September 2008: See Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211. The failure of the Council to issue notification of the determination of 17 September 2008, as required by s 81 of the EPA Act, does not affect the conclusion that the Council, by its delegate, had exercised the power of determination under s 80 of the EPA Act. 42As the Court of Appeal made clear in Pselletes v Randwick City Council [2009] NSWCA 262; (2009) 77 NSWLR 287 at 296, there is a distinction between the determination of the consent authority under s 80 and the notice of determination under s 81 of the EPA Act. Where the determination is to grant development consent, the determination of the consent authority under s 80(1)(a) to grant consent to a development application is what constitutes the development consent, and the notice of determination issued under s 81(1) does not constitute that consent but is merely evidence of it. 43In this case, there was no attempt by the Council knowingly to revisit the September determination and rescind it, then reexercise the power of determination. There was also no request by Mr and Mrs Sandilands under s 82A of the EPA Act for the Council to review the September determination of the development application, and the Council did not attempt to exercise the power of review under s 82A. 44Hence, the Council had no power under s 80 of the EPA Act on 11 November 2008 to determine the development application by granting consent. 45Dr Berveling sought to uphold the Council's purported exercise of power under s 80 of the EPA Act on 11 November 2008 in three ways. 46First, the Council, as a collegiate body, was unaware of the prior determination of the Council, by its delegate, of the development application on 17 September 2008 to refuse consent. This explains why the Council did not attempt to rescind or review the prior determination but rather proceeded as if there had not been a prior determination and the Council was exercising the power under s 80 to determine the development application for the first time. As to this argument, whilst it may explain the Council's conduct, it does not provide an answer to the fact that the power under s 80 was spent by the making of the first determination. 47Secondly, Dr Berveling submitted there was an inherent power to reconsider and revoke a prior determination of the development application before notice of the determination is given. Dr Berveling cited a line of cases under former and current planning legislation supporting the existence of such an inherent power: E x parte Renouf [1924] 24 SR (NSW) 463 at 467; Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740 at 743-744; Panagopoulos v Willoughby City Council (1992) 78 LGERA 270 at 272, 273, 275, 276; Townsend v Evans Shire Council (2000) 109 LGERA 336 at 341-342; Hamod v Minister for Urban Affairs and Planning [2009] NSWLEC 24 at [15]; Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 at [56] [62]. 48Hence, Dr Berveling submitted, as notification of the September determination had not been given by the time of the Council's determination in November 2008, the Council had power to reconsider the September determination and rescind it or alter it. 49Mr Free contested that, under the present statutory scheme, that line of cases supported there being such an inherent power of reconsideration, especially in light of the express power in s 82A of the EPA Act for review of a determination of a development application. More particularly, however, Mr Free submitted that all of those cases dealt with a determination to grant consent, not a determination to refuse consent. The statutory scheme does provide, as did former statutory schemes, for, first, a determination of a development application by the grant of consent under s 80(1)(a) of the EPA Act and, secondly, the notification of that consent under s 81 of the EPA Act. The consent is not effective and does not operate until notice is given under s 81 of the EPA Act: s 83(i) of the EPA Act. However, there is no section equivalent to s 83(1) that applies to a refusal of consent. 50Mr Free submits that the refusal of consent is effective and operates from the date of determination under s 80(1)(b) of the EPA Act. True it is that s 81 requires notice to be given of a determination of a development application to refuse consent, just as it does a determination of a development application to grant consent. However, s 81 does not provide that the determination to refuse consent is not effective and does not operate until notice is given under s 81. 51Hence, Mr Free submits, there is not in the case of a determination to refuse consent, the interregnum of effectiveness between determination and notification that applies in the case of a determination to grant consent. Hence, there is no inherent power of reconsideration in respect of the determination to refuse consent. 52Finally, Mr Free submits that in the facts of this case, the Council never attempted to reconsider and rescind the prior determination of the Council, by its delegate, in September 2008. In all of the cases in which holding there was inherent power to reconsider a determination, the consent authority expressly reconsidered and rescinded the prior determination to grant consent, and made a fresh determination to refuse consent. 53In light of the last mentioned submission based on the facts of this case, it is unnecessary to deal with the general and particular submissions of construction of the statutory scheme that there is not an inherent power to reconsider a determination to refuse consent to a development application. The last mentioned submission is sufficient to deal with Dr Berveling's argument that there was an inherent power to reconsider the prior determination of the development application. The fact of the matter is that the Council, being unaware of the prior determination in September 2008 to refuse consent to the application, never attempted to exercise any inherent power (if one exists) to reconsider then rescind the prior determination. Unless and until the Council did rescind the prior determination to refuse consent to the development application, there was no undetermined development application in respect of which the Council could exercise the power of determination under s 80 of the EPA Act. Because the Council was unaware of the prior determination of the development application, it never did rescind that prior determination. This meant that it never regained the power under s 80 to determine the development application. 54Thirdly, Dr Berveling submitted that no rescission or revocation of the September determination was in fact necessary because the September determination had no effectiveness as it had not been notified under s 81 of the EPA Act . Mr Free submitted that a determination under s 80 to refuse consent to a development application is effective from the time of determination, referring to the Court of Appeal's decision in Pselletes v Randwick City Council , and the absence of a provision such as s 83(1) or any requirement in s 81 that a refusal of consent is not effective and does not operate until notice is given. 55I agree with Mr Free's submission. The determination of the Council in September 2008 to refuse consent to the development application was effective and caused the power under s 80 to be spent. Notification was required under s 81 of the determination to refuse consent but notification was not necessary to cause the determination to refuse consent to be effective and to operate. 56For these reasons, the Council on 11 November 2008 did not have power under s 80 of the EPA Act , to determine the development application by granting consent, that power having been spent by the earlier exercise of power on 17 September 2008 by the Council, through its delegate, refusing consent to the development application. 57In light of this conclusion that there was no power under s 80 to make the determination in November 2008 to grant consent, it is strictly speaking unnecessary to deal with Mr Brown's other grounds of challenge that the Council's exercise of power, if it existed, miscarried. I therefore propose to be brief in dealing with these other grounds. Failure to consider relevant matters 58Mr Brown challenges the Council's exercise of power on 11 November 2008 to grant consent to the development application on the ground of failure to consider a variety of relevant matters. These are certain matters in cl 8 of SEPP 71, cl 29 of the LEP and cl 4.4 and cl 4.9 of the Dwellings DCP. 59For all matters other than cl 4.4 of the Dwellings DCP, there was some consideration of the subject matter of those relevant matters in the reports and information before the Council when it made its decision to grant consent on 11 November 2008. Mr Free's submission is that, nevertheless, there was a constructive failure to consider those matters because the material was not sufficient to enable the Council to give the requisite consideration to those matters. The matters were dealt with in an abbreviated manner by the Council officers in their reports because they were recommending refusal of consent to the development application. If the Council wished to grant consent, however, more detailed analysis would have been required on the matters to provide the Council with an understanding of the matters and the significance of the decision to be made about them: Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 at 201, [80]. 60In my view, having considered the material in the development application, Statement of Environmental Effects and plans, and the various reports of the Council officers available to the Council when it made its decision on 11 November 2008, Mr Brown has not shown that the Council failed to consider the relevant matters alleged, other than cl 4.4 of the Dwellings DCP. The Council is not required to give reasons for its decision, including findings of fact on relevant matters, or the process of evaluation of the relevant matters, or the weight to be given to the relevant matters. Evidently, having regard to the Council's determination that consent should be granted, the Council took a different view of the relevant matters to that taken by the Council officers. But this does not mean that the Council did not consider the matters. 61In relation to the relevant matters in the Dwellings DCP, Mr Free also submitted that the Council did not consider the relevant matters, in particular, the performance requirements in cl 4.4 and cl 4.9, as focal points or fundamental elements in the Council's deliberations: Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at 602. I consider this claim is not made out in relation to cl 4.9, but is made out in relation to cl 4.4. Clause 4.9 of the Dwellings DCP concerns foreshore development. Performance requirement P1 is that: "Apart from inground swimming pools, buildings on properties shown in Figures 4.8, 4.9, 4.10 and 4.11 do not encroach on the Foreshore Building Line." 62Figure 4.11 relevantly shows a foreshore building line crossing 15 Seaside Parade. The plans submitted with the development application clearly show that the proposed deck and new pool encroach on the foreshore building line. This encroachment was noted in the October 2008 report to the Council (it is the third reason for recommending refusal). 63The resolution of the Council at its October 2008 meeting was to allow the applicant to submit amended plans. The amended plans submitted reduced by 4 m the deck from the rear of the property, thereby reducing the extent of non-compliance with the foreshore building line. Nevertheless, as the November 2008 report to the Council noted, the deck and pool still did not comply with the foreshore building line. The report again stated, as the third reason for refusal, that the proposal encroaches upon the designated foreshore building line. In these circumstances, the Council was informed of the noncompliance with the substance of performance requirement P1, although not in those terms. I consider that this is sufficient for the Council to consider this matter. 64The exception is cl 4.4 of the Dwellings DCP concerning side setbacks. Clause 4.4.1 sets out the objectives, including: "To ensure dwellings have adequate access to natural light, daylight and fresh air." 65Clause 4.4.2 sets outs the performance requirements and preferred solutions to satisfying the performance requirements. Clause P3 deals with side setbacks and provides as follows: "Building forms and setbacks allow occupants and neighbours adequate access to natural light, daylight and fresh air. Side setbacks adjoining a street frontage, regarding corner allotments, must integrate with the established setbacks of the side street and maintain the environmental amenity of the streetscape." 66The preferred solutions for meeting the performance requirements for building setbacks are set out in cl 4.4 of the Dwellings DCP, including preferred solution S3 which provides as follows: "Side setbacks are no less than: + 900mm for any part of the building over 1m above ground level and up to one level in height..." 67Nowhere in the reports before the Council is cl 4.4 of the Dwellings DCP addressed. As a matter of fact, the proposed development did not comply with preferred solution S3. The proposed deck and pool were elevated more than one metre above ground level. The deck was not set back from the side boundary by 900 mm, but rather was built to the boundary. 68Accordingly, the proposed development did not comply with the preferred solution S3. The preferred solution is one means by which performance requirement P3 could be met. The development application did not set out an alternative means by which performance requirement P3 could be met. Section 1.5 of the Dwellings DCP explains how to use the DCP. The performance requirements provide the means by which a development will achieve the objectives for each topic. The preferred solution is one means by which the performance requirements can be met. The DCP states that if the applicant proposes not to use the preferred solution, then the applicant must demonstrate compliance with the relevant performance requirement by some other means. This must be "clearly and concisely" demonstrated in the Statement of Environmental Effects. 69This was not done in this case. Moreover, the Council officers did not explain how the performance requirement P3 could be met by means other than by the preferred solution S3. 70Hence, the Council could not have an understanding of either the performance requirement P3 or its nonsatisfaction or the significance of the nonsatisfaction in this case. 71Dr Berveling fairly conceded that the Council did not consider the relevant matters in cl 4.4 of the Dwellings DCP but submitted nevertheless that such a failure was not a material error: Parramatta City Council v Hale (1982) 47 LGRA 319 at 335 and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40. Dr Berveling took the Court to the amended plans to show that any loss of natural light, daylight and fresh air by construction of the deck at a location not complying with preferred solution S3 and performance requirement P3 in cl 4.4 of the Dwellings DCP was nominal. 72Mr Free submits that the Court could not be satisfied that the failure was not a material error. The deck could have a material effect on natural light, daylight and fresh air. 73I am not persuaded that the failure to consider cl 4.4 can be said to not be a material error. The proximity of the deck to the boundary and the height of the deck above the side windows of Mr Brown's house could have an effect on natural light, daylight and fresh air. The significance of that effect and how it might be balanced against other considerations is properly a matter for the consent authority to consider. The failure to consider cl 4.4 of the Dwellings DCP is, therefore, a material error. Wednesbury unreasonableness 74Mr Brown claimed that the decision of the Council to grant consent is manifestly unreasonable in the Wednesbury sense. The principles applicable to review for Wednesbury unreasonableness are well known and are set out in Save Our Street Inc v Settree [2006] NSWLEC 570; (2006) 149 LGERA 30 at [27]-[31] and Bechara v Plan Urban Services [2006] NSWLEC 594; (2006) 149 LGERA 41 at [48]. 75Mr Free submits that the manifest unreasonableness of the decision flows from the emphatic conclusion and recommendation of the Council planners in their reports that the development should be refused as it: was unsuitable having regard to the overall aims of SEPP 71 and the relevant matters for consideration; did not comply with the relevant assessment criteria; did not comply with the objectives and performance requirements of the Dwellings DCP; and would result in adverse impacts upon the integrity of the foreshore protection area. 76I do not consider that a case has been made out that the decision to grant consent, rather than to refuse consent as had been recommended by the Council Officers, to the deck and pool is so unreasonable that no reasonable consent authority could have come to such a decision. The soundness or otherwise of the determination is not to the point. I therefore reject this ground of challenge. Notification to adjoining owners 77Mr Brown's final ground is that notice was not given in accordance with s 79A(2) of the EPA Act and the cl 3.1 of the Notification DCP. Section 79A(2) of the EPA Act provides that: "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." 78Clause 3.1 of the Notification DCP provides that the notification requirements for development applications for development of certain kinds, including the development the subject of this development application, are that letters should be sent to adjoining owners and that the notification period should be 14 days. Mr Brown relied on affidavit evidence of himself, Mr Lee, Mr Black and Mr Simpson, all being persons who the Council determined are affected persons and to whom notification should be given. That affidavit evidence is to the general effect that the deponents did not recall receiving notification of the development application for the new swimming pool and deck proposed in the development application. 79Mr Free submits that it is implausible that four out of the nine affected persons whom the Council identified as needing to be notified under the Notification DCP would not have received notice if in fact notices had been sent. Mr Free, therefore, submits that the Court should draw the inference that the notices had not been sent, notwithstanding the notes in the Council file. 80Dr Berveling relies upon the notes in the Council file that notification by way of letters was sent to each of the nine persons. That evidence I have summarised earlier in the synopsis of facts. Dr Berveling also relied upon the dicta in Somerville v Dalby (1990) 69 LGRA 422 at 427428 and MacKinnon v Henry & Leichhardt Municipal Council , (Land and Environment Court of New South Wales, 12 March 1997, unreported, pp 34), to the effect that the obligation is to give notice and that the Council does not need to be satisfied that the notice has been received by the recipients of the notice. Dr Berveling submits that the evidence in the Council file is that notices were sent. The evidence of four of the nine persons identified by the Council as affected persons that they do not recall receiving notice is not proof that the notices were not sent. 81I do not consider that Mr Brown has proven that the notices were not sent in this case. The notes in the Council file to which I have earlier referred do provide evidence that notices were sent. The statements of the four persons that they do not recall receiving notices is not sufficient to displace the inference that would be drawn from the evidence in the Council file that notices were sent. As Dr Berveling submits, the deponents' evidence is equivocal. 82Mr Brown stated that he was overseas in June and July 2008, the time when the notices, if they were sent, would have been sent. He says that he had someone residing in his home while he was overseas and collecting his mail. He says upon his return he opened and read all the mail that he had received from that person while he was overseas. This does not, of course, eliminate the possibility that some mail might have been received but was not passed on to Mr Brown. 83The evidence of Mr Lee and Mr Black was that they did not receive a letter from the Council notifying them of the proposed deck over the ravine, but they may have received a letter from the Council notifying them of proposed renovations to only the pool. The development application in this case is, of course, for the construction of a new pool and the conversion of the old pool to use for storage of equipment, as well as the construction of a deck. This evidence, therefore, is equivocal as to whether the letter that they say they might have received about proposed renovations to the pool could have been also in relation to the pool and deck. 84The evidence of Mr Simpson is that he does not recall receiving the letter from the Council notifying him of the proposed deck over the ravine. This falls short of a complete denial of receipt of such notification. 85In the circumstances, I am not prepared to draw the inference that the Council did not send the notices that they recorded in the Council file as having been sent to the affected owners. I therefore reject this ground of challenge. Section 25B and discretion 86I have upheld the challenge to the validity of the development consent on the ground of absence of power to grant consent and failure to consider one relevant matter, namely cl 4.4 of the Dwellings DCP. 87Dr Berveling fairly accepted that Mr and Mrs Sandilands' reliance on s 25B of the Court Act and the discretion of the Court was not readily applicable to the ground of absence of power to grant consent. Hence, although I have also upheld the challenge on the ground of failure to consider one relevant matter, because of the absence of power to grant consent, it is inappropriate to employ the power under s 25B of the Court Act . It is also inappropriate to exercise the Court's discretion to refuse declaratory relief. Costs 88The Council made a submitting appearance other than as to costs. Dr Berveling submits that any submissions as to costs should be done at a time when the Council is available to argue that issue. Mr Free did not oppose that course. Accordingly, I reserve the question of costs to allow the parties to list the matter before the Court in order to obtain a hearing for the argument as to the question of costs. Orders 89The Court: 1. Declares that the determination of Randwick City Council on 11 November 2008 granting consent to development application DA 441/2008 for a new swimming pool and deck to rear of existing dwelling at 15 Seaside Parade, South Coogee, is invalid. 2. Declares that the notice of determination dated 20 November 2008 issued by Randwick City Council is invalid. 3. Reserves the question of costs. ********** 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. Decision last updated: 07 October 2011