Land and Environment Court New South Wales Medium Neutral Citation: Manning v Bathurst Regional Council (No 2) [2013] NSWLEC 186 Hearing dates: 8 and 9 October 2012, 4 February 2013 Decision date: 31 October 2013 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [122]. Catchwords: JUDICIAL REVIEW: whether council under an obligation to notify adjoining property owner of proposed development - whether failure to notify was manifestly unreasonable - whether re-notification of the development an appropriate order under s 25B of the Land and Environment Court Act 1979 - whether demolition of the development appropriate. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 79A(2), 79C, 103, 104, 124 Land and Environment Court Act 1979, ss 25B, 25C, 25E Bathurst Regional (Interim) Local Environmental Plan 2005 Bathurst Regional (Interim) Development Control Plan 2011, cl 2.3 Cases Cited: Abebe v The Commonwealth [1999] HCA 14; (1999) 1977 CLR 510 ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Aldous v Greater Taree City Council [2009] NSWLEC 17; (2009) 167 LGERA 13 Anderson v Director General of the Department of Environmental and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 Canterbury City Council v Mihalopoulos [2010] NSWLEC 248 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Csillag v Woollahra Council [2011] NSWLEC 17; (2011) 181 LGERA 141 Curac v Shoalhaven City Council (1993) 81 LGERA 124 Fairfield City Council v Ly [2008] NSWLEC 322 Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 Glaser v Poole [2010] NSWLEC 143 Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; (2012) 190 LGERA 119 Huntlee Pty Ltd v Sweetwater Action Group Inc [2011] NSWCA 378; (2011) 185 LGERA 429 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 Lane Cove Council v Ross (No 14) [2013] NSWLEC 87 Mentink v Minister for Home Affairs [2013] FCAFC 113 Minister for Immigration and Citizenship v Li [2013] HCA 18 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Nader v Sutherland Shire Council [2008] NSWCA 265 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Simpson v Wakool Shire Council [2012] NSWLEC 163; (2012) 190 LGERA 143 Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 Tweed Business and Residents Focus Group Inc v Northern Region Joint Regional Planning Panel [2012] NSWLEC 166 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Western Sydney Conservation Alliance v Penrith City Council [2011] NSWLEC 244; (2011) 83 NSWLR 402 Woollahra Municipal Council v Sahade [2012] NSWLEC 76 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 Category: Principal judgment Parties: Bhakti Manning (Applicant) Bathurst Regional Council (First Respondent) Grant Lynch (Second Respondent) Representation: Mr I Hemmings with Ms V McWilliams (Applicant) Mr P Clay SC (First Respondent) Mr J Lazarus (Second Respondent) Susan Hill & Associates (Applicant) Crennan Legal (First Respondent) Kenny Spring Solicitors (Second Respondent) File Number(s): 40275 of 2012 Judgment The Council Fails to Notify Mrs Manning of the Development Next Door 1In Minister for Immigration and Citizenship v Li [2013] HCA 18, Gageler J observed that "judicial determination of Wednesbury unreasonableness in Australia has in practice been rare" (at [113]). This case is one of those rare determinations. 2The unreasonableness of which his Honour spoke was a reference to the seminal statement by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, to the effect that a court will hold invalid a purported exercise of discretionary power statutorily conferred upon a repository of that power that is so unreasonable that no reasonable repository of that power could have made the impugned decision pursuant to the exercise of that power (at 234). 3The principle, subsequently endorsed and now entrenched in Australia (see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [124]; Abebe v The Commonwealth [1999] HCA 14; (1999) 1977 CLR 510 at [116]); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [40]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [123] and Li), is not new. As the plurality in Li noted, a standard of reasonableness in the exercise of any discretionary power conferred by the legislature was demanded well before the decision in Wednesbury (at [64]-[66]). 4Judging unreasonableness has, however, remained vexed as courts engaged in judicial review have been ever mindful not to trespass into the merits of decision-making. However, as Gageler J opined in Li (at [108]): 108. Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy. Thus "the stringency of the test remains" (at [113]). 5These proceedings relate to a challenge to two development consents granted by the first respondent, Bathurst Regional Council ("the council"), in respect of the construction of a swimming pool, retaining wall and pool safety wall located at 9 McKell Street, West Bathurst, New South Wales ("the Lynch premises"), owned by Mr and Mrs Lynch, next door to the applicant's, Mrs Bhakti Manning, residential property located at 11 McKell Street ("the Manning premises"). 6The development on the Lynch premises ("the site") was permissible with consent in the applicable 2(a) Residential Zone under the Bathurst Regional (Interim) Local Environmental Plan 2005 ("the LEP"). 7The Bathurst Regional (Interim) Development Control Plan 2011 ("the DCP") applied to the site and to the development. Clause 2.3 of that instrument set out the procedures for the notification of proposed development and the criteria for determining whether the development was notifiable. 8It was not in dispute that the council did not notify Mrs Manning, whose premises directly adjoined the land on which the development occurred, of either development application giving rise to the consents. On any construction of the notification provisions contained in cls 2.3.1 and 2.3.2 of the DCP, it is plain, especially when regard is had to the factors set out in cl 2.3.1, that the council ought to have done so. Its failure in respect of both development applications was, to use the language of the case law, irrational, perverse and bizarre. Put another way, the decisions not to notify Mrs Manning of the proposed developments were so unreasonable that no reasonable council could have made them. In short, this is one of those exceptional instances of demonstrated Wednesbury unreasonableness. The consequences of such a finding are discussed below. A Swimming Pool, Retaining Wall, Safety Fence, Pool Filter and Privacy Screen are Constructed on the Lynch Premises 9The factual background giving rise to the challenge to the two decisions of the council not to notify Mrs Manning of the development on the Lynch premises is contained in the following evidence: (a)two affidavits of Mrs Manning affirmed 4 June and 14 September 2012, with photographs annexed; (b)two affidavits of Mr Lynch sworn 3 July and 22 November 2012, with photographs annexed; (c)an affidavit sworn by Mr David Nelson on 6 July 2012 with plans and photographs annexed. Mr Nelson is a Senior Environmental Health and Building Surveyor at the council; (d)an affidavit of Mr Matthew Sproul, a Health and Building Surveyor employed by the council, sworn on 3 July 2012, also with plans annexed; (e)a bundle of documents filed by the council containing the development applications, correspondence passing between the three parties and further photographs; (f)a very brief statement of agreed facts (less than a third of a page); and (g)a site visit to the Manning premises and the Lynch premises that demonstrated the relative scale, bulk and impact of the development on the site adjoining Mrs Manning's property. 10Prior to carrying out the impugned development, the Lynch premises had an above ground pool in the rear yard at ground level. The rear of the Lynch premises slopes downwards as does Mrs Manning's rear yard. The pool was partially visible from the deck at the rear of the dwelling on the Manning premises, but not from the ground on her side of the fence dividing the two properties, due to the height of the fence and screening provided by shrubbery. There was, at that time, neither a privacy screen surrounding the pool nor a safety fence above the height of the boundary fence. 11In early September 2011, Mr Lynch told Mrs Manning that they were getting "a bigger pool". He told her that there would be a privacy screen and indicated approximately where the pool and retaining wall would be located. 12During October and November 2011, Mrs Manning observed excavation occurring, the placement of steel footings and the delivery of a pool shell. It was at this stage that she "started to have some concerns" because the pool looked "huge". She stated, however, that her fears were allayed because the pool was supposed to be an in-ground pool and she therefore assumed that most of it would be concealed. She also assumed that the development "must be of a minor nature" due to the absence of any notification from the council. 13On 23 November 2011 Narellan Pools lodged development application (DA 2011/0439) with the council on behalf of Mr and Mrs Lynch ("the first DA") for an in-ground pool, safety fence and retaining wall. The first DA was lodged pursuant to the LEP. 14According to his affidavit, Mr Sproul undertook an inspection of the Lynch premises on 2 December 2011. With him was the council file, including the plans of the proposed pool and retaining wall. At the time of the inspection, the above ground swimming pool previously in existence had been demolished. 15The plans for the swimming pool location and construction were, with the exception of engineering drawings for the construction of a retaining wall, hand drawn and marked "not to scale". On the plans the approximate location of the retaining wall was marked and described as "Proposed Retainer Wall to 1800 High with pool safety fence on top". A hand annotated ground level datum point was marked on one of the plans, together with the inscription "Top of pool 150mm above Datum". 16By reference to the identified datum on the plans Mr Sproul noted that the proposed pool was to be constructed 150mm above the top of the existing retaining wall. From a position of around one metre from the boundary between the Lynch and Manning premises, Mr Sproul made the following observations: (a)that there was a recently constructed deck at the rear of the first floor level of the Manning premises that was at a slightly similar or higher elevation than that of the top of the existing boundary fence between the Manning and the Lynch premises; (b)that the fencing between the two premises consisted of a brick fence and thereafter a Colorbond fence approximately 1.8m high stepping down along the boundary towards the rear of each of the Manning and Lynch blocks; (c)that the view over the rear deck on the Manning premises was into the rear yard to the Lynch premises with a view of the former swimming pool and their backyard; (d)that the dominant view from the rear deck of the Manning premises was towards the distant hills. It would not be interrupted by the construction of the proposed swimming pool; (e)that, in his opinion, the construction of a solid fence on the proposed retaining wall around the pool would obscure the view of a person standing on the deck of the Manning premises into the swimming pool on the Lynch premises. Furthermore, it was not possible to see from ground level at the rear of the Manning premises into the Lynch premises and that would not change as a result of the proposed development; (f)that, in his opinion, the northerly rear and sloping aspect of the land meant that no overshadowing "of any significant degree" would impact upon the Manning premises; (g)that, potential noise transmission from the Lynch premises would consist of recreational noise and the noise from a pool pump. He considered such noise to be a "regular feature of residential development" within the 2(a) Residential Zone. Although the location of the pump was not identified on the plan, in his opinion, it would "not pose any adverse impact by the imposition of a condition limiting its noise level". Recreational noise from the use of the swimming pool was "something which is to be expected"; and (h)that the pool the subject of the application was to replace an existing pool in "a generally similar location" on the Lynch premises that had been in use for some years. 17As a result of his inspection, his consideration of plans of the proposed development and an inspection of aerial photographs of the site, Mr Sproul concluded that the development would not have "an adverse impact" when assessed against the DCP, and in particular, having regard to: the views to and the views from surrounding the land; the potential overshadowing of the surrounding land; the privacy of the surrounding land; the potential noise transmissions to the surrounding lands; and the likely visual impact of the proposed construction on the street scape. Mr Sproul hence formed the opinion that the development the subject of the application did not require notification in accordance with cl 2.3.1 of the DCP. 18He therefore completed an Assessment Sheet, which included a checklist, stating that he had considered the "matters set out in the Council's Advertising & Notification DCP", and concluded that there were "no issues with the proposed in ground swimming pool and retaining wall, no overshadowing". Mr Sproul therefore recommended that the first DA be approved subject to conditions. 19On 5 December 2011 the council granted development consent consistent with Mr Sproul's recommendation for approval. 20Mr Sproul was cross-examined. The questioning revealed that; (a)the Colorbond fence was going to be removed in order to construct the retaining wall, but that the height of the retaining wall was not stipulated in the consent. It was Mr Sproul's assumption that the wall would be approximately 1700mm to 1800mm high. However, Mr Sproul was unable to point to any numerical data on the plans that assisted in determining the height of the retaining wall other than the datum point; (b)there was nothing in the plans or the consent that indicated whether the top of the pool was the surface level of the pool or the coping. He agreed that it could be either; (c)there was nothing on the plans to indicate what the finished surface around the pool would be; (d)it was not clear from the plans whether the retaining wall was above or below the finished level of the pool; (e)the engineering specification for the retaining wall did not assist to determine the height of the retaining wall. It could, looking at the plans and the specifications therefore, be reasonably assumed that the retaining wall was to be lower than the finished height of the pool, which in fact was not the case; (f)there were, as he conceded, "plenty of different interpretations" available on the plans as to the height of the retaining wall, and these different interpretations had the potential to result in a different form of development; (g)the first sheet of the plans depicting the location of the pool was not to scale and looking at that plan it was not possible to determine where the pool sat in relation to existing buildings on either premises. Furthermore, there were no set-off distances identified on the plans so, as Mr Sproul accepted, "the pool could be located anywhere"; (h)it was Mr Sproul's understanding that there would be a solid fence constructed on the top of the retaining wall. The plans did not state "solid fence", rather his understanding was based on his experience; (i)there was no limit on the height of the solid pool fence stated in the consent. Accordingly, the consent permitted a solid pool fence of unlimited height to be built on top of the retaining wall; (j)Mr Sproul agreed that if a solid pool fence was to be built on top of the retaining wall this would have a very different presentation to the adjoining property when compared to an open pool fence; (k)there was the potential for a 12m shadow being cast into Mrs Manning's backyard if a 4m wall was built on the boundary between the adjoining premises; (l)the area of the Lynch premises was in excess of 1100m² and there was no restriction on the location of the swimming pool on those premises; (m)the starting point for any assessment of the development application was, in his view, that (T144.01-144.04): Normally when someone brings a plan in, you know that's what they want to have on their block of land. You know they've got the right to have it on their block of land. (n)and there was no identification on the plans as to where the pump or pool equipment were to be located. 21During the course of December 2011 Mrs Manning observed a wall being built and the pool being placed on top of, and not inside of, the constructed wall as she had envisaged. By now she was "extremely alarmed" at the size and nature of the development on the Lynch premises. 22As a consequence, Mrs Manning attended the council's offices on 21 December 2011 and demanded to see a copy of the plans of the development on the Lynch premises. The council officer refused to provide her with access to the plans. When she inquired as to what material was proposed to be used for the solid pool safety fence, the council officer consulted the plans and told her that "no material has been specified". 23Mrs Manning was so concerned, that she immediately wrote a letter to the council complaining of the intrusion by the development on her amenity, especially her privacy, and requested its removal. 24Mrs Manning attended the council's offices twice on 23 December 2011 and was given a copy of the site plan, and engineering drawings for the retaining wall and a copy of the DCP. 25Later that day, the pool was filled with water. 26On 24 December 2011 Mr Lynch had a conversation with Mrs Manning during which she told him that she did not want the pool located where it was. His response was that it would be screened off and that there had always been a pool in that location. 27On 3 January 2012 Mr Nelson had a conversation with Mr and Mrs Lynch concerning their interaction with Mrs Manning over the Christmas period. Mr Nelson requested a more detailed plan of the proposed solid pool fence on the boundary between the two properties. This was provided by Mr Lynch either later that day or the following day. 28On 4 January 2012 Mr Nelson reviewed the further plans and observed that the brick panels identified on the plans exceeded one metre in height and therefore would not be covered by the council's exempt development criteria. He communicated this to Mr Lynch. 29Meanwhile, between 3 and 9 January 2012, Mrs Manning continued to correspond with the council over the construction of the pool on the Lynch premises. 30On 13 January 2012 Mrs Manning finally obtained a copy of the first DA, the consent, the construction certificate and the associated plans. 31In her affidavit affirmed 4 June 2012, Mrs Manning gave evidence that, had she been notified of the first DA, she would have raised the following matters: (a)the likely overshadowing caused by the proposed development, in particular the retaining wall and the safety fence; (b)the height of the proposed development; (c)the location of the pool immediately adjacent to the boundary fence; (d)the removal of vegetation, which had formerly acted as a screen between the two properties, caused by the location of the pool; (e)the inclusion of an elevated pool deck and the resulting adverse impact on her privacy; and (f)the adverse impact of the materials to be used in the construction of the pool on her visual amenity. 32On 31 January 2012 a second development application was lodged by Mr Lynch (DA no 2012/0026) ("the second DA") for a pool fence, pool filter cover and privacy screen. The second DA was lodged pursuant to the LEP. 33Mr Nelson was the council officer responsible for assessing the second DA. He observed that the plans attached to the second DA were different in a number of respects from the plans previously provided to the council pursuant to the first DA. 34Mr Nelson inspected the Lynch premises on 6 February 2012. Relevantly he observed that: (a)the view from the deck located at the rear of the dwelling on the Manning premises would not be interrupted by the proposed construction of the Colorbond screen fence, the brick pool filter cabinet or the brick pool barrier; (b)the construction of the brick pool filter cabinet or the brick pool barrier would obscure the view of a person standing on the deck of the Manning premises of the swimming pool and a portion of the rear yard of the Lynch premises; (c)no overshadowing of the Manning premises "of any significant degree" would occur as a result of the proposed development; (d)the installation of the brick cabinet for the pool filter would operate to suppress noise generated by the pool filter and pump; (e)the materials, namely, Colorbond and brick "are of common [sic] and to be expected forms of construction in a residential 2A zone and would not provide an unsightly or unacceptable treatment when viewed from no. 11 [the Manning premises]"; and (f)the proposed development would enhance the privacy of both the Manning and Lynch premises. 35As a result of his inspection and his consideration of the plans, Mr Nelson formed the view that the second DA "would not have a detrimental effect in relation to the" criteria to be assessed in the DCP with respect to views; potential overshadowing; privacy; potential noise; and "any other issues considered by the Council to be relevant to the application". This, he deposed, included Mrs Manning's concerns about the proposed development previously raised by her. Thus, it was his opinion that the second DA did not need to be notified pursuant to cl 2.3.1 of the DCP. 36Mr Nelson also completed an Assessment Sheet stating that he had considered the relevant "matters set out in the Council's Advertising & Notification DCP" noting, in the main, that there were "no detrimental effects". He also made the following comment: 37The construction is horizontally level on a sloping block. The combined height of the brick pool fence with [sic] reach approx 3.6m which is a combination of an existing 1.8m high colorbond fence + 1.8m high brick pool fence. The visual impact of this construction is diminished by a shed with a pitched roof on the adjoining property. 38Notwithstanding the 3.6m high fence to be constructed on the boundary between the Manning and Lynch premises, it was his opinion that there were "no detrimental effects" to the proposed development in the second DA. Mr Nelson therefore recommended that consent be granted to the second DA. 39The second DA was approved later that day by the council. 40On 10 February 2012 Mrs Manning was given access to the council files in respect of both the first and second DAs. 41On 1 March 2012 a modification application was lodged to alter the materials used for the pool filter cover and the privacy screen, in particular, in respect of the former, the change was from brick to Hebel blocks. According to Mr Lynch, this latter alteration was to further attenuate the noise emanating from the pool filter. 42Mr Nelson considered these modifications to be sufficiently minor that no further inspection was warranted and he recommended that the modification application be approved. 43The modification application was determined favourably to Mr Lynch on 16 March 2012, and a construction certificate was issued. 44At the hearing Mr Nelson was cross-examined. He agreed that: (a)by reference to the plans, it was neither possible to precisely determine where the brick pool fence or barrier was to be located on the Lynch premises nor the height of the base, because the plans were not to scale; (b)there was nothing in the plans indicating what the level of the pool deck was; (c)there was nothing in the plans to precisely indicate what the overall height of the wall would be and he had made an estimation as to its height; (d)a 3.6m high, 6m long brick wall on a property boundary was, contrary to his written evidence, "a most unusual feature" in the council's local government area; (e)if the purpose of constructing the wall was to afford privacy, a wall of this height and length was not required; and (f)of the "under a hundred" residential development applications he had assessed, he was not aware of any that had resulted in notification. 45Mrs Manning deposed in her June 2012 affidavit that had she been notified of the second DA, she would have objected to: (a)the visual intrusiveness of the brick pool fence by reason of its height and overshadowing; (b)the adverse visual impact of the mix of materials used in the development (the Colorbond screen fence, the brick retaining wall and the brick pool fence); and (c)the excessive height of the privacy screen between the two properties and the reduction in light it would cause to her dwelling. 46Mrs Manning was cross-examined on the contents of both affidavits. She conceded that: (a)the new pool covered the area of the location of the pre-existing pool, albeit that the new pool was larger and closer to the boundary between the two premises; (b)she had no objection to a larger pool being located on the Lynch premises; (c)part of the retaining wall was obscured by her shed and the trees and shrubs located along the boundary; (d)she had retained "sweeping views" to the north and northeast from her deck notwithstanding the development; (e)she was aware that the council had attached conditions to its approval of the first DA concerning the noise level permitted to emanate from the pump in respect of decibel levels and hours of operation and that the presence of the Hebel blocks would further reduce the noise coming from the pool filter and pump; and (f)that growing tall trees on her premises could ameliorate the visual dominance of the brick wall on top of the brick retaining wall on the Lynch premises. 47On 22 March 2012 Mrs Manning commenced the proceedings. 48On 23 March 2012 Mr Lynch laid the Hebel blocks in order to construct the pool filter cabinet. 49As was evident from the site visit, as at the date of the hearing: (a)the installation of the pool had been completed and the pool filled with water; (b)the finished level of the pool was higher than the previous height of the boundary fence between the Manning and Lynch premises; (c)the deck of the swimming pool was approximately two metres above ground level; (d)a permanent metal pool safety fence had been erected. Previously temporary pool fencing has been installed but its hire was, according to Mr Lynch, "too great to continue paying"; (e)the brick pool fence or barrier located along the boundary of the two properties varied between approximately 3.4 to 3.9m in height above the natural ground level. There was no setback and no landscaping in respect of either the retaining wall or the brick pool fence and, on any view, the side of the wall facing the Manning premises was imposing and unsightly; and (f)the privacy screen had been installed along the boundary of the two premises. Legislative Framework 50Section 79A(2) of the Environmental Planning and Assessment Act 1979 ("the EPAA") provides as follows: (2) A development application for specified development (other than designated development or advertised 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. 51Clauses 2.3.1 and 2.3.2 of the DCP state (emphasis added): 2.3.1 What is notified development? Public notification of Development Applications will occur in situations other than those provided for in section 2.2 above. A decision on whether an application will be notified will be dependent on a number of factors which can only be determine by inspection of the plans relating to individual development applications. These development applications are referred to as notified development. The factors that Council will take into consideration in determining whether a development application will be notified and to whom are as follows: (a) the views to and the views from surrounding land, (b) potential overshadowing of surrounding land, (c) privacy of surrounding land, (d) potential noise transmission to the surrounding land, (e) the likely visual impact of the proposed building in relation to the streetscape, and (f) any other issues considered by Council to be relevant to the application. 2.3.2 Who will be notified? Generally written notice of a notified Development Application will be given to the owners of land directly adjoining the land on which the development is intended to occur. For the purposes of determining which properties are separated by a road, pathway or other significant feature. Further larger properties unlikely to be affected by the proposed development may also not be notified. The Claim as Pleaded 52As pleaded in the amended summons, the amended points of claim and as traversed in the defences filed by the council and Mr Lynch, the following issues were initially identified for determination: (a)first, did the council breach s 79A(2) of the EPAA and cls 2.3.1 and 2.3.2 of the DCP by failing to notify Mrs Manning of the first and second DAs; (b)second, did the council apply an incorrect test in determining not to notify Mrs Manning of the first and second DAs; (c)third, was Mrs Manning denied procedural fairness in respect of the failure by the council to notify her of the first and second DAs; (d)fourth, did the council fail to consider a mandatory relevant consideration in granting the consents, namely, whether or not it should notify Mrs Manning of the first and second DAs; (e)fifth, was the decision not to notify Mrs Manning of the first and second DAs manifestly unreasonable; (f)sixth, and in the alternative, were the consents void for uncertainty; and (g)seventh, if any of the grounds of review were successful, what was the appropriate remedy? 53As stated above, in light of my finding that the decision of the council not to notify Mrs Manning of the first and second DAs was manifestly unreasonable, most of the grounds of challenge raised by Mrs Manning, some of which were only faintly pressed by her and some of which were, in my view, misconceived, do not require determination. Notification Under the DCP 54Section 79A(2) of the EPAA imposes, as the parties agreed, an obligation on the council to act in accordance with a DCP that provides for the notification and advertisement of a development application. In order, therefore, to determine if there has been a breach of s 79A(2) of the EPAA, it is first necessary to properly construe cls 2.3.1 and 2.3.2 of the DCP. 55Notification of a property owner, even an adjoining property owner, of any proposed development is not mandatory under the DCP. So much so is plain from the language of cls 2.3.1 and 2.3.2. Rather, in order to determine if an application "will be notified", the council must have regard to the factors specified in cl 2.3.1 and assess the criteria against the plans relating to the proposed development. Once that process has been undertaken, the council must decide whether or not the development application is "notified development". 56Thus, while there is a mandatory obligation, in my opinion, on the council to undertake the process of assessment, the classification of the development application as "notified development" is nevertheless discretionary insofar as it is dependent upon the council's evaluation of the criteria in cl 2.3.1 of the DCP. If the development application is determined to be "notified development", the council must then determine who, if anyone, will be notified having regard to the guidance provided in cl 2.3.2. The decision of who¸ if anyone, must be notified is also discretionary in nature and there is nothing in cl 2.3.2 that compels actual notification of a "notified development". 57Nevertheless, in circumstances where a development may adversely impact the views, privacy and visual amenity of an adjoining property owner; may overshadow an adjoining property owner; or may result in increased noise levels to an adjoining property owner, it is difficult to conceive of a reasonable determination that there is to be no notification of the proposed development to that owner. 58Two distractions emerged during oral argument bearing upon the correct interpretation to be afforded to cls 2.3.1 and 2.3.2 of the DCP. 59The first distraction was Mrs Manning's submission that whether or not a development application was to be characterised as "notified development" was a question of jurisdictional fact for the Court to determine. 60The contention was not that the public notification requirement of s 79A(2) of the EPAA was a jurisdictional fact, compliance with which was a precondition to the exercise of power by the council to determine the first and second DAs - it is (Tweed Business and Residents Focus Group Inc v Northern Region Joint Regional Planning Panel [2012] NSWLEC 166 at [13]-[15]) - rather, it was argued by Mrs Manning that the determination of whether the first and second DAs were "notified development" under the DCP gave rise to a jurisdictional fact. 61When regard is had to the now established principles governing the existence of jurisdictional facts (see the discussion in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [28]; Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 at [39]; Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at [43]; Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 at [38]-[39]; Huntlee Pty Ltd v Sweetwater Action Group Inc [2011] NSWCA 378; (2011) 185 LGERA 429 at [114]-[115]; Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 at [57]-[58] and Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 at [236]-[239]), this submission must be rejected. On any reasonable construction of their text, cls 2.3.1 and 2.3.2 of the DCP are not framed in terms of 'facts' but concern factors that the council must consider in determining whether or not to notify the development. That is to say, cls 2.3.1 and 2.3.2 establish the mandatory matters that the council must take into account during the course of its assessment as to whether or not to notify the proposed development, rather than stipulate facts about which the council must be satisfied. Whether a development application is to be notified, and if so, to whom, is a matter for the council to determine and not the Court. 62The second distraction was the meaning of the term "unlikely to be affected" in cl 2.3.2. Mrs Manning argued that the word "affected" meant any change whatsoever. Thus, if the proposed development was likely to affect, in any way, an adjoining property owner, then notification should occur. In other words, cl 2.3.2 created a presumption in favour of notification of all adjoining property owners, irrespective of the application of the factors contained in cl 2.3.1. 63I do not agree. In my opinion, the words "unlikely to be affected" do no more than ensure that the very vice about which the council cautioned against during the hearing, namely, a construction of cls 2.3.1 and 2.3.2 that imposes an obligation on the council to notify all adjoining property owners of all development applications irrespective of the negligible impact of the proposed development does not arise. In other words, "affect" is not to be construed to include any and all 'effects', no matter how trivial, of a development. As discussed above, the function of cl 2.3.2 is to provide guidance to the council in determining, once the development application is classified as "notified development", who should be notified. The clause does not bind the council in its determination, but sets out the factors that the council must consider in making it. 64Having regard to the facts set out above, it is clear that both Mr Sproul and Mr Nelson had regard to cls 2.3.1 and 2.3.2 of the DCP and adequately considered, first, whether the first and second DAs were "notified development", and second, whether or not Mrs Manning should be notified, and on each occasion determined that she should not. 65With the exception of the challenge pursuant to manifest unreasonableness, the merits of the council's decisions cannot be cavilled with. The Court is only concerned with whether consideration was in fact given by the council to the question of whether or not notification was required. In my opinion, the evidence has demonstrated that it was. 66Further, contrary to the submission of Mrs Manning, more than mere 'lip service' was given by the council officers to the criteria contained in cls 2.3.1 and 2.3.2 of the DCP (see Anderson v Director General of the Department of Environmental and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 at [58]). Or, to use the language of the amended points of claim, "proper, genuine and realistic consideration" (for the genesis of this epithet and its subsequent application and criticism, see the discussion in Fullerton Cove at [154]-[156]. More recently the Full Federal Court of Australia has employed the formulation "active intellectual engagement with the mandatory criteria (or the submission or representation)": Mentink v Minister for Home Affairs [2013] FCAFC 113 at [44]) was given to whether or not the first and second DAs were "notified development" and whether Mrs Manning ought to be notified of the applications. In short, a sufficiently fulsome consideration was given by the council to the question of notification. 67Mrs Manning also argued that the council had applied the wrong test in determining not to notify her on each occasion insofar as both Mr Sproul and Mr Nelson were concerned with whether the impact of the proposed development would have a "detrimental effect" (Mr Nelson) or an "adverse effect" (Mr Sproul) when assessed generally against the content of cl 2.3.1 of the DCP, or that certain aspects of the development, for example, overshadowing and noise, would not be "adverse" or "significant" (Mr Sproul). 68The council submitted in reply that it would be contrary not only to the proper construction of cls 2.3.1 and 2.3.2 of the DCP, but to all commonsense, if the council was obliged to notify property owners, including adjoining landowners, of proposed development that had a beneficial or positive effect. 69Leaving aside, for present purposes, the correctness or otherwise of the council officers' assessment of the impact of the first and second DAs, I do not accept, on the balance of probabilities in this instance, that Mr Sproul applied the wrong test in relation to the first DA. Rather, the language relied upon by Mrs Manning in this respect amounts to no more than a descriptive summary of Mr Sproul's opinion that the impact of the proposed development was sufficiently trivial that, having regard to the balancing exercise demanded by the factors in cls 2.3.1 and 2.3.2 (insofar as Mrs Manning was an adjoining property owner), no notification was required. I therefore do not find that Mr Sproul applied the wrong test when assessing the criteria contained in cl 2.3 of the DCP; instead he had regard to whether or not the impact of the development application would be immaterial or inconsequential. These considerations do not speak of error on the part of the council. The council's contention that the terms of the DCP do not demand that every impact, however negligible, of any development gives rise to an obligation to notify is, in my view, correct upon a proper construction of those clauses. 70In relation to Mr Nelson, however, the evidence supports the contrary conclusion, namely, that he did apply a test of detriment when assessing the factors relevant to determining whether the second DA was "notified development". Evaluating the cl 2.3.1 factors only through a prism of detrimental effect amounts to an unwarranted and impermissible gloss on the proper construction of that clause (and cl 2.3.2 to the extent that it informs its interpretation) having regard to its text, subject matter, scope and purpose, and was, in my opinion, in error. 71Moreover, in my view, if, having regard to the factors in cl 2.3.1 of the DCP, the council considered that the potential impact of a development application would be material but nevertheless beneficial to an adjoining property owner, it would not axiomatically follow that notification was not required. At all times, within the framework of cls 2.3.1 and 2.3.2 of the DPC, the only applicable touchstone is one of materiality, or conversely, immateriality or triviality, and not detriment or benefit. 72The case law is replete with statements concerning the importance of strictly adhering to planning legislation requiring public notification (Curac v Shoalhaven City Council (1993) 81 LGERA 124 at 129; Tweed Business at [16] and Simpson v Wakool Shire Council [2012] NSWLEC 163; (2012) 190 LGERA 143 at [83]-[87]). In Csillag v Woollahra Council [2011] NSWLEC 17; (2011) 181 LGERA 141 Craig J emphasised the central importance of public notification in the planning regime in this State. His Honour stated as follows (at [32]-[33]): 32 By requiring the advertising and notification of development applications, the DCP is giving effect to an important object of the EPA Act. That object, as expressed in s 5(c), is "to provide increased opportunity for public involvement and participation in environmental planning and assessment." Relevantly, s 79A(2) gives statutory force to the DCP by mandating notification and advertisement of a development application in accordance with its provisions (Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207 at [58]). 33 The purpose achieved by giving effect to the legislative object is twofold. First, it affords a form of procedural fairness by providing an opportunity to those who have an interest in or who may be affected by proposed development to learn of its detail before any decision is made. Secondly, it affords the opportunity to improve the process of decision making by enabling the consent authority to make a decision, fully informed of the potential consequences of development as perceived by the community. 73Thus, any material change to the privacy, visual impact, overshadowing or amenity of another property owner, particularly an adjoining property owner, will not be precluded from notification under cl 2.3 of the DCP, merely because its effect is not considered to be adverse by the council. 74This is because one person's perceived potential development bonanza may be another person's consequential construction curse. It is only through strict compliance with any mandated notification process that individuals will be afforded the opportunity of commenting upon development in order to protect their interests and those of the broader public. By failing to comply with the statutory requirements for notification of development applications, the council deprives itself of the opportunity of considering submissions of owners and objectors who may be affected by the proposed development. 75Finally, and in passing, it should be noted that at the hearing Mrs Manning expressly disavowed any reliance on a common law duty of procedural fairness to notify a development application, separate from the statutory obligation enshrined in s 79A(2) of the EPAA. Because I have concluded that it was manifestly unreasonable for the council not to have notified Mrs Manning of the first and second DAs, I do not propose to address further the issue of whether Mrs Manning was denied procedural fairness by reason of the council's failure to notify her of the first and second DAs. The Decision of the Council Not to Notify Mrs Manning of the First and Second DAs Was Manifestly Unreasonable 76In my opinion, the facts and circumstances giving rise to the granting of the two consents outlined above plainly demonstrates the manifest unreasonableness of the council's decision not to notify Mrs Manning of the first and second DAs having regard to the factors contained in cls 2.3.1 and 2.3.2 of the DCP. 77In respect of the first DA, I have arrived at this conclusion based on the uncertain and ambiguous nature of the hand drawn plans, particularly with respect to the location of the pool, the pool pump and pool equipment on the Lynch premises; the height of the pool above ground level; the height of the retaining wall; the height of the brick pool wall on top of the retaining wall; and the material to be used in the construction of the pool wall. The pool and associated infrastructure could be located anywhere and the walls could be built to any height, and out of any material. In these circumstances, the impact, adverse or otherwise, of the proposed development, having regard to matters such as privacy, overshadowing, noise and visual amenity, could not be properly assessed by the council and a determination that the development was not "notified development", could not be justified. These deficiencies were rendered all the more acute by reason of the fact that Mrs Manning was an adjoining property owner to whom written notice of a notified development would "generally" be given. Alternatively, if the proposed construction of the pool could be assessed, it is inconceivable that, having regard to the height, location, and relative bulk and scale of the development, Mr Sproul could reasonably conclude that Mrs Manning did not need to be informed of the development. 78Turning to the second DA, it must be recalled that by this stage Mrs Manning had put the council unequivocally on notice of her grievance that she had received no notification of the first DA, and moreover, that she was unhappy with the impact of the development on her property. The council nevertheless exercised its discretion not to notify her of the second DA notwithstanding this notice and notwithstanding that there was nothing on the plans to indicate the precise location of the brick pool fence, the height of the pool deck, or that as a result of an "estimation" by him, the height of the retaining wall and the pool wall would be approximately 3.6m which was, by his own admission, "unusual", and which was not necessary to afford privacy. In light of these facts Mr Nelson's decision that there would be no "detrimental effect" on, for example, the visual amenity of Mrs Manning, overshadowing, or noise levels was manifestly unreasonable, as was his decision not to provide her with written notification of the second DA. 79The scale of the towering and unsightly wall on the boundary between the Manning premises and the Lynch premises and its dramatic impact was perfectly captured in photos tendered by the parties and confirmed during the site visit. Although mindful of the retrospective nature of this impact, affording a visual demonstration and perspective of the nearly completed development unavailable to Mr Sproul and, to a lesser extent, Mr Nelson, at the time of their inspections, it nevertheless demonstrated that on no basis, let alone on any reasonable basis, should the decision have been made not to notify Mrs Manning of either the first or second DAs. 80It appears that the attitude of the council with respect to notification of, the first and second DAs was succinctly summarised by Mr Sproul, namely, that a proponent who is the owner of the land over which development consent is sought has "got the right to have it on their block of land". This attitude infected their consideration of cl 2.3 of the DCP and led them into error. 81In summary, the council's decision not to notify Mrs Manning of the first and second DAs was manifestly unreasonable. Are the Consents Uncertain? 82Relying on the well established principles with regard to uncertainty as enunciated in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (at 737) and Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 (at [24]-[28]), Mrs Manning submitted that in respect of each of the first and second DAs, the consent given was unlawful because its terms lacked finality or certainty permitting the possibility that in each instance the development as approved could be significantly different from the development the subject of the application. 83To reiterate, it is not strictly necessary for me to determine this issue. However, because a significant amount of time at the hearing was devoted to arguing this issue, it therefore is incumbent on the Court to express an opinion on this issue, albeit a preliminary one. 84The test adopted in Kindimindi is evaluative in nature. Thus the council and Mr Lynch submitted that, insofar as the development the subject of the first DA was for an in-ground pool, retaining wall and pool fence, this was precisely the development described in the approved plans attached to the development approval and in respect of which consent was granted. A similar argument was put in relation to the second consent. 85What has in fact been constructed is not strictly relevant in determining whether, at the threshold, there was uncertainty. It is a matter of assessment of the approved plans and the terms of the consent. On balance, I find that the approval of the first DA was so lacking in finality that it leaves open the possibility of a significantly different development. There was no, as was, in my view, necessary, cogent information on the "NOT TO SCALE" hand drawn plans attached to the consent regarding the location of the pool in relation to the dwellings on either the Lynch or the Manning premises; the finished height of the pool; the height of the retaining wall; the relationship between the pool and the retaining wall; the materials to be used in construction; the location of the pool filter, pump and pool equipment; and the height of the safety fence. For example, and although illustrative only of the uncertainty inherent in the approved plans, what was described as an "inground pool" elevated 150mm above ground level in the first DA, resulted in raising the ground level of the site by approximately 2m before the installation of the pool. To this extent the plans not only tend towards uncertainty, they were apt to mislead. 86The uncertainty in the second consent, however, was not sufficient, in my opinion, to leave open the possibility that a significantly different development, notwithstanding ambiguity about the location and height of the pool wall, would result. Are the Consents Invalid? 87The failure to notify Mrs Manning of the first and second DAs on the basis that it was manifestly unreasonable to do so is in breach of cl 2.3 of the DCP and thus in breach of s 79A(2) of the EPAA. A purported exercise of the statutory power to grant development consent has no validity where a condition for the exercise of the power has not been fulfilled (Wakool at [83] and the authorities cited thereat). The failure to comply with the statutory requirements in the DCP and s 79A(2) of the EPAA for the notification of the first and second DAs cannot be described as merely technical or minor in nature (Wakool at [84]) and the orders for relief sought by Mrs Manning involve the enforcement of not just private rights, but a public duty imposed by the EPAA to uphold the legislatively enshrined public interest in public participation in the development approval process. Ordinarily, therefore, the breach by the council would result in a declaration of invalidity of each of the development consents granted pursuant to those development applications. 88In the amended summons Mrs Manning seeks, in addition to declaratory relief referred to above, orders that the consents be set aside and an order that Mr Lynch demolish the development the subject of the consents. 89This was opposed by Mr Lynch and the council, both of whom placed considerable emphasis on the fact that at all times Mr Lynch believed he had the benefit of valid development approvals and built the pool in accordance with their terms. The council conceded, however, that if the consents were declared invalid and set aside, "demolition would be the subsequent ultimate outcome". 90The council and Mr Lynch instead submitted that the appropriate remedy was to suspend the operation of the consents pursuant to the regime provided for in ss 25A to 25E of the Land and Environment Court Act 1979 ("the LEC Act"), in particular s 25B, and specify appropriate terms, compliance with which would validate the consents, namely, notification and reconsideration of the first and second DA by the council. 91Sections 25B and 25C of the LEC Act provide as follows: 25B Orders for conditional validity of development consents (1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order: (a) suspending the operation of the consent in whole or in part, and (b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations). (2) Terms may include (without limitation): (a) terms requiring the carrying out again of steps already carried out, or (b) terms requiring the carrying out of steps not already commenced or carried out, or (c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act. 25C Orders for validity of development consents (1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant development consent be regranted with alterations, the Court may make an order: (a) declaring that the terms have been substantially complied with, and (b) declaring that the consent is valid, and (c) revoking the order of suspension. (2) On application by the Minister or any other consent authority for an order under this subsection on the ground that the terms specified under section 25B have been substantially complied with and that the development consent has been regranted with alterations as referred to in section 103 of the Environmental Planning and Assessment Act 1979, the Court may make an order: (a) declaring that the terms have been complied with, and (b) declaring that the development consent has been validly regranted, and (c) declaring that the suspended development consent has been revoked, and (d) revoking the order of suspension. 92Section 25E of the LEC Act imposes a duty on the Court to consider making an order under Div 3 of Pt 3 of that Act instead of declaring or determining that a development consent to which that Division applies is invalid in whole or in part (Csillag, citing Kindimindi, at [57]). It states: 25E Duty of Court It is the duty of the Court to consider making an order under this Division instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part. 93The provisions in ss 25A to 25E of the LEC Act must be construed together with ss 103 and 104 of the EPAA (Kindimindi at [38] and Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; (2012) 190 LGERA 119 at [32]). Those latter provisions provide: 103 Revocation or regrant of development consents after order of Court (1) This section applies to a development consent granted, or purporting to be granted, by a consent authority, to which an order of suspension applies under section 25B of the Land and Environment Court Act 1979. (2) The consent authority may revoke a development consent to which this section applies, whether or not the terms imposed by the Court under section 25B of the Land and Environment Court Act 1979 have been complied with. (3) However, if the terms imposed by the Court have been substantially complied with, the consent authority may revoke the development consent to which this section applies and grant a new development consent with such alterations to the revoked consent as the consent authority thinks appropriate having regard to the terms themselves and to any matters arising in the course of complying with the terms. Such a grant of a development consent is referred to as a regrant of the consent. (4) No preliminary steps need be taken with regard to the regrant of a development consent under this section, other than those that are required to secure compliance with those terms. (5) Section 81 and such other provisions of this Act as may be prescribed by the regulations apply to development consents regranted under this section. 104 Appeals and other provisions relating to development consents after order of Court (1) A development consent declared to be valid under section 25C of the Land and Environment Court Act 1979: (a) is final and the provisions of sections 97 and 98 do not apply to or in respect of it, and (b) is operative as from the date the development consent originally took effect or purported to take effect, unless the Court otherwise orders. (2) A development consent declared under section 25C of the Land and Environment Court Act 1979 to be validly regranted: (a) is final and the provisions of sections 97 and 98 do not apply to or in respect of it, and (b) takes effect from the date of the declaration or another date specified by the Court. 94More recently, the principles applicable to the process of suspension of a development consent and validation under ss 25B and 25C of the LEC Act were discussed by the Court in Western Sydney Conservation Alliance v Penrith City Council [2011] NSWLEC 244; (2011) 83 NSWLR 402 (at [107]-[112]); Hoxton Park (No 3) (at [30]-[41]); Wakool (at [96]-[105]) and Csillag (at [57]-[60]), upon which I rely. 95The authorities suggest that the mechanism in ss 25A to 25E of the LEC Act and ss 103 and 104 of the EPAA is directed towards technical breaches, thereby affording the Court a discretion designed to save a consent, upon rectification of the breach, in order to avoid invalidating the whole approval. 96In the s 25B context there is a distinction between a discrete technical breach and a breach of a mandatory consideration requirement in s 79C of the EPAA, with the latter rarely giving rise to an order under s 25B of the LEC Act (Hoxton Park (No 3) at [37]-[40] and the cases cited thereat). Similarly, where there has been a successful challenge to a development consent on the basis of a denial of procedural fairness, it has been held to be inappropriate to make orders under s 25B because the whole merit process has miscarried (Hoxton Park (No 3) at [41]). Equally, it has been held that relief under s 25B is not available where there has been a complete absence of power to grant a development consent (Hoxton Park (No 3) at [41]). 97The application of these principles militate against the availability of orders made pursuant to s 25B of the LEC Act in the present case. Nevertheless, as Mr Lynch noted in his submissions, invalidity arising from a failure to comply with s 79A(2) of the EPAA is amenable to a s 25B order, (for example, Csillag). This is particularly so where, as in this instance, the impact of the breach is limited to relatively few people and the works were relatively small in their scope and cost (cf Csillag at [59]; Wakool at [104]-[105] and Tweed Business at [39]). Mr Lynch also noted that a s 25B order was available in circumstances where the invalidity was the result of uncertainty (Aldous v Greater Taree City Council [2009] NSWLEC 17; (2009) 167 LGERA 13 at [97]). 98In order to 'validate' the consent, Mr Lynch contended, all that would be required would be the provision of more detailed plans and to afford Mrs Manning an opportunity to make submissions to the council in respect of the first and second DAs. 99I do not agree. First, I consider the circumstances of this case to be distinguishable from those of Csillag. In that decision, there was proper notification to owners of adjoining and neighbouring land in accordance with the applicable development control plan in addition to an advertisement in the local newspaper, however, the advertisement insufficiently described the address of the land to which the proposed alterations to the apartment related. In the present case, there was no compliance with the notification requirements of the DCP at all, and significantly, no notice was given to the adjoining property owner and occupier of land who would be affected by the proposed development. The breach was, therefore, of a fundamentally different and less grave character than the breach in these proceedings, which is not one that, in my opinion, warrants orders being made under s 25B of the LEC Act. As Preston J stated in Wakool (at [101]-[102]): 101 In the circumstances of this case, I do not consider that it would be appropriate to suspend the operation of the development consent on terms that the Council give notice of the development application in accordance with DCP 8 and s 79A(2) of the EPA Act and then reconsider and redetermine the development application taking into account any submissions received in response to the notification. 102 As I have observed earlier, compliance with the mandatory requirements for notification of development applications is in the public interest. Public participation in the development process is crucial to the integrity of the planning system under the EPA Act and promotes the objects of the EPA Act. It is not to be viewed as a technical and tokenistic speed hump designed to slow but not divert or prevent the inexorable passage of a development application along the highway to approval. To the contrary, if notification is undertaken in accordance with the statutory requirements, the consent authority's consideration and determination of the development application might change. 100His Honour's comments were adopted and applied in Tweed Business where Biscoe J declined to make an order under s 25B of the LEC Act in circumstances giving rise to a contravention of s 79A(2) of the EPAA. They are equally apposite in the present case and lead to the same result. Demolition 101Understandably, Mr Lynch stridently submitted that the Court should not accede to the "extreme and disproportionate step" of ordering demolition of any of the development the subject of either consent, particularly when, at all times, he had, as he was entitled to, assumed that the consents were valid and he had proceeded with the development on this basis. It was not, Mr Lynch argued, until Mrs Manning wrote to him on 7 March 2012, that he was put on notice that the consents could be invalid, by which time the development was largely complete. 102There are many illustrations of this Court ordering demolition of works (Woollahra Municipal Council v Sahade [2012] NSWLEC 76; Canterbury City Council v Mihalopoulos [2010] NSWLEC 248; Glaser v Poole [2010] NSWLEC 143; Fairfield City Council v Ly [2008] NSWLEC 322; Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469, upheld on appeal: Nader v Sutherland Shire Council [2008] NSWCA 265 and Lane Cove Council v Ross (No 14) [2013] NSWLEC 87). 103The discretion to order relief, including demolition, under s 124 of the EPAA is wide. The principles governing the exercise of the Court's discretion have been analysed in a number of decisions of this and other Courts, including in the seminal decisions of Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 (at 339-341) and ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 (at 82). 104The discretion is, at its core, concerned with the enforcement of a public duty imposed pursuant to an enactment of Parliament, in this instance, s 79A(2) of the EPAA. If exceptions to compliance with the EPAA are sanctioned, then its orderly enforcement may be undermined (Glaser v Poole at [60], albeit in a different statutory context). 105In exercising the discretion, the Court must weigh up all of the relevant factors including the injury to the public interest by the denial of the relief sought; the likely hardship to Mr Lynch as the holder of the development consents by granting the relief; any relevant conduct of Mr Lynch; any conduct of Mrs Manning, including delay, in bringing the proceedings; whether the breach is merely technical; and the impact of the breach on the environment. 106At the hearing of these proceedings, Mrs Manning gave oral evidence concerning various measures that could be taken, including partial demolition of the development, to ameliorate the impact of the development on her. Notably these included extending the length of the brick pool fence along the northern boundary of the Lynch premises to afford Mrs Manning greater privacy, relocating the brick pool fence from the boundary between the two premises to 300mm to the edge of the pool and landscaping the area between it and the boundary, ensuring that this area be designated as "non trafficable", demolishing the Colorbond fence, relocating the pump equipment to the northern end of the pool and removing the privacy screen. Although not wholly resiling from an order for demolition of the entirety of the new pool and surrounding infrastructure, it is fair to say that the focus of Mrs Manning's submissions in relation to relief were the measures referred to above. 107In his affidavit sworn 22 November 2012, Mr Lynch deposed to the difficulties of removing these specific items. Specifically he contended that: (a)extending the brick pool fence would block the views to the north from his back yard and shade the pool for most of the day; (b)relocating the brick pool fence in the manner proposed was not possible because it sat on top of the retaining wall and had been engineered and constructed with reinforcing steel embedded in the retaining wall blocks. Any relocation would affect the plumbing associated with the pool filter and pump; (c)relocating the brick pool fence and landscaping the resulting area between the boundary of the two premises would alienate a portion of his land and reduce the area of the pool enclosure; (d)designating a non-trafficable area would also reduce the usable pool area; (e)removing the Colorbond fence was possible but was resisted on the basis that it was the existing boundary fence between the two properties; (f)relocating the pool pump to the northern side of the pool would require significant plumbing and electrical works and would necessitate cutting the concrete slab surrounding the pool to obtain access to the pipes; and (g)removing the privacy screen would have the effect of diminishing their privacy. 108Mr Lynch was cross-examined on his written evidence. During the cross-examination he accepted that: (a) progress payments were made by him to Narellan Pools, the new pool was delivered and the old pool removed, prior to the first DA having been lodged; (b) he had told Mrs Manning that the new pool would be an in-ground pool. But he went on to state that it was less expensive to raise the level of the ground, build a retaining wall and elevate the new pool rather than excavate a hole for the pool shell and sink the pool into the ground; (c) if the brick fence located along the northern boundary of the two premises was extended it would not block Mr Lynch's distant views, only the views of his back yard; (d) the brick pool wall could be relocated away from the boundary; (e) the pool pump could be located anywhere on the Lynch premises; and (f) as at Christmas 2011, he was aware that Mrs Manning was unhappy with the development, particularly with respect to its impact on her privacy and the anticipated elevated noise levels caused by its operation and use. 109Having regard to the evidence of both parties and the factors stated above, in my opinion, demolition should be ordered in relation to the development carried out in respect of the second, but not the first, consent. 110Although on both occasions the breach by the council in failing to notify Mrs Manning of the DAs may be described as more than merely technical, in respect of the first consent I agree with the submissions of Mr Lynch that ordering demolition of the pool cannot be justified upon a proper exercise of the Court's discretion to order relief. First, I do not accept that Mr Lynch took a "commercial risk" by taking steps to commence the development prior to the lodgement of the first DA, nor do I accept that any wrongdoing or blame can be attributed to Mr Lynch in proceeding with the development the subject of the first DA and consent. 111At all times Mr Lynch was guided by the advice from Narellan Pools with respect to the design and installation of the pool, and there is no suggestion that, by commencing the development prior to the first DA having been lodged or approved, the breach by the council would have been avoided. The evidence demonstrates that the council would have nevertheless approved the first DA absent Mrs Manning's notification. This was not a case of a proponent seeking to progress a development alive to the risk of invalidity and a consequential order for demolition (unlike the cases cited above at [102]). Furthermore, at all times up to and including the granting of the first consent, Mr Lynch was unaware of Mrs Manning's amenity concerns and at all times Mr Lynch believed, correctly, that he had the benefit of a valid consent. It is not the fault of Mr Lynch that the council did not comply with the notification requirements contained in the DCP and that it acted in contravention of the EPAA in approving the first DA. It is also not the fault of Mr Lynch that the first consent was almost certainly uncertain. Mr Lynch gave evidence that he saw neither the first DA nor the attached plans, both of which had been prepared by Narellan Pools, prior to their lodgement with the council, and at no point did the council request further information or more detailed plans prior to granting approval. 112Second, if Mr Lynch is ordered to demolish the entire pool structure there can be no doubt that it would cause significant financial and emotional hardship to him. Mr Lynch gave oral evidence that as at the end of November 2011 he had paid Narellan Pools approximately $50,000 which represented 75% of the contract price for the excavation, delivery and installation of the new pool. I agree that demolition would result in a substantial impost being inflicted on Mr Lynch in circumstances where at all times he has acted lawfully in respect of the first DA and the ensuing consent. 113Third, although the environmental impact of the council's breach on Mrs Manning was not, as Mr Lynch described, 'insignificant', nonetheless, the impact was limited to a single adjoining property owner. True it is that the breach has wider ramifications for the public interest when regard is had to its detrimental effect on the integrity of the planning system, but this is not enough, in my view, to warrant an order for demolition in this instance. 114In respect of the second consent, however, I have reached a different conclusion. Although many of the factors discussed above are directly relevant and equally applicable to this consent, I am less convinced that the hardship that will undoubtedly result to Mr Lynch occasioned by an order for demolition is sufficient to outweigh the suffering Mrs Manning continues to endure by reason of the presence of the unnecessarily imposing and ugly brick pool wall, the increased noise levels associated with the pool pump and filter and the unsightly nature of the privacy screen. The evidence discloses that these structures can be removed and the adverse impact on Mrs Manning's privacy and general amenity ameliorated without excessive inconvenience and hardship to Mr Lynch. 115Mr Lynch argued that Mrs Manning's concerns about the amenity impacts on her property had been exaggerated insofar as the new pool was in a similar position to that of the pre-existing swimming pool, the noise impacts from the pool pump and filter had been mitigated by the installation of the Hebel bricks and the brick pool filter cover, and the brick pool wall in fact afforded greater privacy to both premises. 116But these submissions ignore the obvious facts that the pre-existing pool was at ground level and could not be seen by Mrs Manning when she was similarly at ground level; that as a result there had been minimal incursions on her privacy; that previously there was significantly less noise associated with the operation (rather than use) of the pre-existing pool; and that there was now overshadowing of her premises caused by the construction of a towering brick wall approximately 4m in height on her boundary and by the privacy screen. 117I also reject the assertion that Mrs Manning had delayed in commencing the proceedings. To the extent that she was put on notice of the development by Mr Lynch prior to the commencement of the development, it was only in the vaguest of terms and, on occasion, in a manner that was potentially misleading. For example, the pool cannot be reasonably described as an in-ground swimming pool in any conventional sense and the exact location and height of the brick pool fence was never properly explained by Mr Lynch to Mrs Manning. Furthermore, it was not, despite repeated requests by Mrs Manning, until 13 January 2012 that she was finally able to obtain a copy of the first DA, the plans and the consent, and it was not until 10 February 2012, that she obtained access to the council's files in respect of both the first and second DAs. If any party is guilty of delay, it is the council for having failed to provide Mrs Manning with these documents in a timely fashion, particularly given the alacrity with which both DAs were approved. In my opinion, Mrs Manning has been as much a victim of the council's ineptitude as Mr Lynch, and any criticism of her in this regard cannot be sustained. 118For the reasons given above, I therefore find that the development the subject of the second consent must be removed. Mr Lynch should, however, be given a degree of latitude in the time required to give effect to the order. A period of 60 days is appropriate in all of the circumstances. Costs 119Normally costs follow the event in proceedings in Class 4 of the Court's jurisdiction and the appropriate order should therefore be that the council and Mr Lynch pay Mrs Manning's costs of the proceedings. 120However, Mrs Manning has not been wholly successful in obtaining orders for demolition of the development the subject of the first consent, and as between the council and Mr Lynch it is easy to envisage an alternative form of costs order than that posited above. 121In these circumstances, the Court is amenable to the parties being permitted a period of time within which to consider if some other form of costs order should be sought rather than the 'usual' costs order. Orders 122In conformity with the reasons above, the Court: (1)declares that the development consent in respect of development application no 2011/0439 ("the first consent") for premises at 9 McKell Street, West Bathurst, New South Wales ("the site"), granted by the first respondent on 5 December 2011, is invalid; (2)declares that the development consent in respect of development application no 2012/0026 ("the second consent") for the site granted by the first respondent on 6 February 2012, is invalid; (3)orders that the second consent granted by the first respondent be set aside; (4)orders that the second respondent, by himself, his servants, agents and assigns, be restrained from acting further on, or relying upon, the second consents; (5)orders that within 60 days the second respondent demolish the development approved and constructed pursuant to the terms of the second consent; (6)orders that the first and second respondents pay the applicant's costs of the proceedings, unless within 14 days any party applies to the Court (Pepper J) for some other costs order; and (7)orders that 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. Decision last updated: 25 November 2013