Planning update: No Notice - No Consent!

Planning & Environment eBulletin - 13 August 2012

Summary

The NSW Land and Environment Court (Court) recently made a decision which highlights the importance of complying with notification requirements for development applications under the relevant development control plan and the Environmental Planning & Assessment Act 1979 (NSW). 

In Simpson v Wakool Shire Council1, the Court found that Wakool Shire Council's (Council) failure to notify all owners and occupiers of land that may be affected by a development proposal, made the development approval invalid.

This case highlights the ongoing importance of compliance with notification requirements when necessary. It also reminds us that the Court takes community engagement and consultation very seriously when it is a legislative requirement.

 

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Background

 

  • The Council granted development consent to Jonesy's Dairy Fresh Pty Ltd to use an existing industrial building as a dairy processing plant (Consent). It gave notice of the proposed development to adjoining landowners but it did not identify and give notice to other owners and occupiers of land that may be affected by the proposed development, as required by the relevant development control plans (DCP). 
  • A resident of the local town challenged the validity of the Council's development consent on the basis that it had failed to notify affected land owners and occupiers as required by the DCP, and that the Council had also failed to consider the impacts of noise and odour from the dairy plant on surrounding residential properties.
  • The Court found that the Council had addressed the noise and odour impacts from the dairy plant by, among other things, imposing relevant conditions to prevent the operation of the dairy plant at night, designating specific access routes for heavy vehicles, and making final development consent conditional following a trial period of 18 months.

 

 

No notice - no consent!

 

 

  • The Court agreed that the Council had failed to give notice in accordance with the DCP and found that there was nothing to justify the Council's non-compliance with the notification requirements. 
  • The Court has a power to suspend the operation of a consent and specify terms of compliance which would validate the consent (Section 25B Order)2. However, on this occasion because of the nature of the development, the Court did not consider it appropriate to suspend the operation of the Consent and made an order invalidating the Consent. It found that the Council needed to give notice of the development application in accordance with the DCP and then reconsider and redetermine the development application, taking into account any submissions received.
  • The Court stated that public participation in the development process is crucial to the integrity of the planning system under the Environmental Planning & Assessment Act 1979 (NSW).
  • The Court distinguished the circumstances of this case from other current case law3  in which a Section 25B Order was made because the development proposed in this instance was of an industrial nature. This meant that it was likely to have external impacts in terms of noise, odour, traffic generation and loss of amenity, which was likely to affect people in the neighbourhood who had not been notified of the development application.

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Significance of this decision in light of the Green Paper

 

  • This case highlights the ongoing importance of compliance with notification requirements. It also reminds us that the Court takes community engagement and consultation very seriously when it is a legislative requirement.
  • The NSW Government's recently released A New Planning System for NSW Green Paper proposes community consultation on a much broader scale and upfront in the strategic planning process. How it will deal with notification and consultation of particular DAs is still to be determined. We will keep you posted on any further developments.

Author

Natalie Rodwell | Lawyer - Property, Projects & Infrastructure

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1 [2012] NSWLEC 163
2 Section 25B of the Land & Environment Court Act 1979 (NSW) 
Csillag v Woollahra Council [2011] NSWLEC 17 

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