Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349 (15 November 2011)

Last Updated: 18 November 2011

Court of Appeal New South Wales

Case Title:	Hoxton Park Residents Action Group Inc v Liverpool City Council
Medium Neutral Citation:	[2011] NSWCA 349
Hearing Date(s):	12 September 2011
Decision Date:	15 November 2011
Jurisdiction:
Before:	Giles JA at 1; Basten JA at 2; Macfarlan JA at 59
Decision:	(1) Allow the appeal and set aside the orders made in the Land and Environment Court on 14 December 2010. (2) Remit the proceedings to the Land and Environment Court for determination of the appropriate relief. (3) Order that the second and third respondents pay the appellant's costs of the appeal. (4) Direct that the Land and Environment Court, on remitter, determine any order as to the costs of the proceedings in that Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	ADMINISTRATIVE LAW - judicial review - obligation of decision-maker to consider specified matter as a precondition to the validity of a decision - further consideration in exercise of separate power not inconsistent with obligation COSTS - varying judgment or order - remittal - order for costs in court below JUDICIAL REVIEW - limitation period - whether notice commencing period "in accordance with the regulations" PROCEDURE - judgments and orders - no entitlement to relief - option for court to make an order of conditional validity - Land and Environment Court Act 1979 (NSW), s 25B - Environmental Planning and Assessment Act 1979 (NSW), s 124 - remittal for trial court to consider appropriate order STATUTORY INTERPRETATION - language of regulation deliberate and not inadvertent - statutory obligation placed on councils - all necessary elements required for validity of development consent notice STATUTORY INTERPRETATION - principles - implied limitation on the language of Environmental Planning and Assessment Act 1979 (NSW), s 79C - assessment of all likely impacts of development application - exclusion of likely environmental impacts the subject of separate evaluation - inconsistent with objects of Act WORDS & PHRASES - "in accordance with the regulations" - "ordinary office hours" - "statement"
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 5, 66, 74E, 79C, 100, 101, 110, 123; Pts 4, 5 Environmental Planning and Assessment Regulation 2000 (NSW), cl 124 Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 12, 67, 68, 75 Land and Environment Court 1979 (NSW), ss 25B, 58 Roads Act 1993 (NSW), s 125
Cases Cited:	Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226[2009] NSWLEC 226; , 172 LGERA 1 Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86 Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292 Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317 CPT Manager Ltd (Acting as Trustee of the Broken Hill Trust) v Broken Hill City Council [2010] NSWLEC 69 Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWLEC 99; 167 LGERA 205 Hoxton Park Residents Action Group Inc. v Liverpool City Council (No 2) [2010] NSWLEC 259 Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 Minister for Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 90; 139 FCR 24 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463 R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; 70 CLR 598 R v Young [1999] NSWCCA 166; 46 NSWLR 681 Randwick Municipal Council v Crawley (1986) 60 LGRA 277 Scurr v Brisbane City Council [1973] HCA 39; [1973] HCA 39; 133 CLR 242 Tasker v Fullwood [1978] 1 NSWLR 20 Wentworth Securities Ltd v Jones [1980] AC 74 Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276; 76 NSWLR 379 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707
Texts Cited:	Aronson, Dyer and Groves, Judicial Review Administrative Action (4th ed, Law Book Co, 2009) at [4.295]-[4.305]
Category:	Principal judgment
Parties:	Hoxton Park Residents Action Group Inc - Appellant Liverpool City Council - First Respondent Australian Federation of Islamic Councils Inc - Second Respondent Malek Fahd Islamic School Ltd - Third Respondent
Representation
- Counsel:	Counsel: Mr J Johnson - Appellant Submitting appearance - First Respondent Mr A E Galasso SC/Mr G B Newport - Second and Third Respondents
- Solicitors:	Solicitors: Robert Balzola & Associates (Legal) - Appellant Marsdens Law Group - First Respondent Goldrick Farrell Mullan - Second Respondent
File number(s):	2010/423970
Decision Under Appeal
- Court / Tribunal:
- Before:	Biscoe J
- Date of Decision:	26 November 2010
- Citation:	Hoxton Park Residents Action Group Inc. v Liverpool City Council [2010] NSWLEC 242
- Court File Number(s)	LEC 40178 of 2010
Publication Restriction:

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 30 June 2009 the Liverpool City Council gave consent for Malek Fahd Islamic School Ltd to use land owned by the Australian Federation of Islamic Councils Inc for the purpose of constructing and operating a school. The site of the proposed school was an undeveloped, roughly rectangular area of approximately 2.6 hectares. Access to the school was to be via an undeveloped road, which required a bridge across a public reserve and waterway. The original development application included the bridge, but that element was later removed. The bridge was to be constructed on a public reserve vested in the Council and did not require development consent. A statement of environmental effects in respect of the bridge nevertheless accompanied the application.

On 8 July 2009 a notice of the grant of development consent was published in the "Liverpool City Council News". On 16 March 2010 the Hoxton Park Residents Action Group Inc filed an application in the Land and Environment Court challenging the validity of the consent on the basis that the Council had failed to consider likely environmental impacts of the bridge. Biscoe J found that the Council had not considered such impacts and thus acted in breach of the Environmental Planning and Assessment Act 1979 (NSW) in granting the development consent. His Honour further concluded that no relief was available as the proceedings were not brought within three months of the publication of the notice of Council's consent to the application and were therefore time barred, pursuant to s 101 of the Act.

The Residents Action Group appealed to this Court against the finding that the notice published by the Council was effective and valid. By notice of contention, the Federation and the School, the active respondents in the proceedings, sought to uphold the primary judge's conclusion, on the ground that the application should have been dismissed on the merits.

The issues for determination on appeal were:

(i) whether the primary judge erred in upholding the validity of the notice and consequently the commencement of the limitation period, and

(ii) whether the primary judged erred in finding that the consent to the development application was invalid

The Court held, allowing the appeal and rejecting the contention (per Basten JA, Macfarlan and Giles JJA agreeing):

In relation to (i)

1. Clause 124 of the Environmental Planning and Assessment Regulation 2000 (NSW) sets out the essential elements of a notice of the grant of development consent, for the purposes of s 101 of the Environmental Planning and Assessment Act 1979 (NSW) ("the Act"). Clause 124(1)(c) requires that the notice contain a statement that the consent is available for public inspection, free of charge, during ordinary office hours at a specified office. A notice which does not include a statement referring to availability "during ordinary office hours" does not comply with the clause and is not a notice given "in accordance with the regulations" for the purposes of s 101 of the Act. Absent such a notice, time had not commenced to run for the purposes of s 101: [30].

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707; Scurr v Brisbane City Council [1973] HCA 39; 133 CLR 242 applied

2. The notice given by the Council on 8 July 2009 was not given "in accordance with the regulations" and therefore did not trigger the commencements of the limitation period in s 101.

In relation to (ii)

3. An environmental impact which was a likely consequence of the development needed to be considered, even though it resulted from activity which was not itself the subject of the development application, for the purposes of s 79C(1): at [47]-[48].

Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463; Minister for Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 90; 139 FCR 24; Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86 referred to.

Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226, 172 LGERA 1; CPT Manager Ltd (Acting as Trustee of the Broken Hill Trust) v Broken Hill City Council [2010] NSWLEC 69 applied.

4. There was no basis to read s 79C(1)(b) down, so as to exclude environmental impacts which have been or are likely to be considered in relation to a separate development application required for that activity: [57].

Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292; Wentworth Securities Ltd v Jones [1980] AC 74; R v Young [1999] NSWCCA 166; 46 NSWLR 681; Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276; 76 NSWLR 379 referred to.

5. The conclusion of the primary judge that the Council did not consider the impact of the construction of the bridge was not in error: at [40].

6. The further finding of the trial judge that the bridge was likely to be constructed was also not in error: at [42].

JUDGMENT

1. GILES JA : I agree with Basten JA.

2. BASTEN JA : On 30 June 2009 the Liverpool City Council ("the Council") gave consent for the use of land owned by the second respondent, the Australian Federation of Islamic Councils Inc ("the Federation"), for the purpose of constructing and operating a school, to be undertaken by the third respondent, Malek Fahd Islamic School Ltd ("the School"). On 8 July 2009 notice of the grant of development consent was published. Some nine months after publication of the notice, on 16 March 2010, the appellant, Hoxton Park Residents Action Group Inc, filed an application challenging the validity of the consent in the Land and Environment Court.

3. The substantive challenge to the consent rested on a specific aspect of the development proposal, namely that vehicular access to the school would take place by construction of a new roadway which in turn required the construction of a bridge through bushland and over a waterway. The bridge was to be constructed by the School, but on land owned by the Council. Accordingly, it did not require development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (NSW) ("the EP&A Act"). That aspect of the project was subject to separate environmental assessment under Part 5 of the EP&A Act, which had not been concluded when the Council granted consent to the development application for the construction of the school. The appellant submitted in the Land and Environment Court that, although the construction of the bridge was not part of the development application, it was an essential element of the proposed development and, accordingly, failure to consider likely environmental impacts of the construction of the bridge invalidated the consent.

4. Biscoe J upheld the appellant's contentions in that regard: Hoxton Park Residents Action Group Inc. v Liverpool City Council [2010] NSWLEC 242. However, noting that proceedings were not brought within three months of the publication of the notice of the Council's consent to the application, his Honour concluded that the proceedings were time-barred, pursuant to s 101 of the EP&A Act, and therefore no relief was available. On 14 December 2010 his Honour made orders dismissing the application with costs: Hoxton Park Residents Action Group Inc. v Liverpool City Council (No 2) [2010] NSWLEC 259.

5. The proceedings having been heard in the Class 4 jurisdiction of the Land and Environment Court, an appeal lay as of right: Land and Environment Court 1979 (NSW) ("the Court Act"), s 58. The appellant challenged the validity of the notice, in the absence of which time did not commence to run in respect of proceedings challenging the validity of the development consent. By notice of contention, the Federation and the School challenged his Honour's conclusion on the substantive issue, submitting that, regardless of the time bar, the application should have been dismissed on the merits.

6. For the reasons given below, the appeal should succeed and the notice of contention should be dismissed. The appellant accepts that there remains an issue as to whether it should obtain the relief it sought or whether the Court would make an order of conditional validity under s 25B of the Court Act; the matter will accordingly need to return to the Land and Environment Court for that issue to be considered.

Limitation period

7. An important object of the EP&A Act is "to provide increased opportunity for public involvement and participation in environmental planning and assessment": s 5(c). One mechanism adapted to the achievement of that object is the provision permitting "any person" to bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of the EP&A Act, whether or not any right of that person has been affected by the breach: s 123(1). That provision is commonly referred to as an "open standing" provision. To take advantage of such a facility, members of the public must have notice of grants of consent. Against the facility for open challenge must be balanced the need for certainty and finality to permit the beneficiaries of approved development to carry out the relevant works without being at risk of a declaration of invalidity. That balance is achieved by imposing a time limit on the commencement of proceedings challenging the validity of a consent, following the provision of public notice of the grant of consent. The critical provision, which is central to the argument on the appeal, is s 101 of the EP&A Act, which, at the date of the consent, was (and remains) in the following terms:

" 101 Validity of development consents and complying development certificates

If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given."

8. It was not in doubt that a notice was given in the present case: the question was whether it was given "in accordance with the regulations". Clause 124 of the Environmental Planning and Assessment Regulation 2000 (NSW) ("the Regulation") was in July 2009 (and remains) in the following form:

" 124 What are the public notification procedures for the purposes of section 101 of the Act?

(1) The granting of a development consent is publicly notified for the purposes of section 101 of the Act if:

(a) public notice in a local newspaper is given:

(i) by the consent authority, or

(ii) if the consent authority is not the council, by the consent authority or the council, and

(b) the notice describes the land and the development the subject of the development consent, and

(c) the notice contains a statement that the development consent is available for public inspection, free of charge, during ordinary office hours:

(i) at the consent authority's principal office, or

(ii) if the consent authority is not the council, at the consent authority's office or the council's principal office."

9. There are aspects of the expression of cl 124 which leave something to be desired. For example, the structure does not follow the form of the section; rather than identifying requirements of a public notice, it purports to identify circumstances in which the granting of consent is "publicly notified". It does not deal with complying development certificates. Nothing turns on these matters for present purposes.

10. Paragraph (a) requires that the notice be given "in a local newspaper". In the present case, the notice was published in a document entitled "Liverpool City Council News". No question was raised as to whether that was a publication falling within the ordinary meaning of the undefined phrase "a local newspaper". It also requires that the notice be given by the consent authority, but that adds nothing to the requirements of s 101 of the EP&A Act.

11. Paragraph (b) requires that the notice describe the land and the development the subject of the consent. Notices in the publication referred to set out numerous approvals listed by area alphabetically, the subject consent being one of a number of approvals under the heading "Hoxton Park". The development application was identified by number and the land by a street address, namely, in this case, 612 Hoxton Park Road. It is not necessary to set out the description of the development as its adequacy was not challenged.

12. Paragraph (c) requires that the notice contain "a statement" to the prescribed effect. The paragraph is uncertain in a number of respects. First, the requirement is for a statement having four generic elements. The first two elements, namely availability for public inspection and availability for such inspection free of charge, must presumably be included in those terms. The second two elements identify the period and place of inspection. It is unclear whether the statement must use the actual language of (c), or whether it must identify the office hours and the location of the consent authority's principal office. In respect of location, its seems unlikely that the content of paragraph (c) was to be copied verbatim into the statement and thus into the notice. Some part of the notice must identify the consent authority, which may not be the publisher of the notice. The purpose of the Regulation would also be ill-served if the location of the principal office of the consent authority or the Council, or both, were not to be given in the notice. The better view may be that the location, that is the address at which inspection may take place, is to be identified in the statement. It is not necessary to form a concluded view in that respect, because the absence of such an element in the statement did not form part of the challenge in the present proceedings.

13. Of greater importance is the question whether it is sufficient that the statement identify the period of inspection as "during ordinary office hours", or whether those hours should be stated. If the hours are not identified, the reader will be required to make further inquiries. The fact that the statement does not need to include a telephone number or website by means of which such inquiries might be pursued, suggests that a purposive approach would require the statement to include identification of the ordinary office hours. A contrary argument may be that the concept of "ordinary office hours" is well-understood and does not require express identification. Again, it is not necessary to resolve this question, although it comes close to the heart of the present challenge.

14. A further issue, not debated in the present proceedings, but again of potential relevance, is the identification of the "notice". The newssheet, so far as it was in evidence, was a two-page document. Each page contained three columns. The heading "Notice of Development Applications Approved by Council - June 2009" appeared near, but not at, the top of the third column on the first page. The same heading appeared at the beginning of the first column on the second page. Under the heading, on each occasion, the following statement appeared:

"To view the complete list, visit Council's website. All development consents are available for public exhibition free of charge at Council's Administration Centre."

15. It was assumed that the Regulation permitted a "public notice", containing a relevant "statement" for the purposes of paragraph (c), which related to numerous development consents. It was also assumed, at least in this Court, that although the notice itself did not identify the location for inspection as the Council's "principal office", nor did it give the address of the "Administration Centre" to which it referred, that it was nevertheless sufficient in these respects, presumably on the basis that the Administration Centre was the Council's principal office, the address of which could be found elsewhere on the newssheet.

16. The statements set out above made no reference to "public inspection", but rather referred to "public exhibition". Exhibition is something undertaken by the Council; inspection is something undertaken by the interested party. The two phrases thus have a different connotation and are separately dealt with, where appropriate: see, eg, s 74E, EP&A Act. No argument was based on this departure from the language of the Regulation.

17. Critical for the present case was the absence from the statement of the words "during ordinary office hours", either alone or with a specification of the relevant hours. The appellant was content to rely upon the simple absence of the words contained in paragraph (c).

18. In the Court below, Biscoe J noted that there was authority against the proposition that this particular notice did not comply with the requirement of the Regulation, namely Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWLEC 99; 167 LGERA 205 (Lloyd J). That case involved a challenge to the validity of a development consent. Because the challenge was rejected, it was unnecessary to consider the effect of the public notice of the consent, but Lloyd J did "briefly indicate" his conclusion on that issue. His Honour found the notice ineffective because of an inadequate description of the property: at [53]. The further comment on the failure to include reference to ordinary office hours was, therefore, doubly unnecessary. However, he disposed of a challenge to the omission of such a statement by saying that it was "self evident that the office would be open during ordinary office hours": at [54]. In the present case, Biscoe J adopted his Honour's conclusion and explained his reasoning in the following passage:

"[50] I am prepared to follow Hastings , which is indistinguishable . The effect of that decision is that in the case of a notice such as the present, it is so obvious that it goes without saying that the development consent may be inspected during ordinary office hours. In other words, although not stated expressly, as a matter of necessary implication the notice stated that the development consent may be inspected during ordinary office hours.

[51] The fact that this was stated implicitly rather than expressly arguably may not comply with cl 124 of the EPA Regulation . If so, it must be demonstrated that there is a legislative intention to invalidate the notice because of that non-compliance. ...

...

[54] In circumstances where a notice implicitly states (because it is so obvious that it goes without saying) that a development consent can be inspected during ordinary office hours, it is unlikely I think that the legislature intended that an omission to say so expressly would invalidate the notice. A contrary conclusion would have serious consequences not just for the proponent but for anyone who at any time in the future has an interest in Land since proceedings to challenge the validity of a development consent could be mounted decades into the future without any statutory time bar. The discretion to withhold a remedy in circumstances of long delay in the institution of proceedings and prejudice is another matter."

19. In discussing the effect of the omission, his Honour referred to the principles stated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [91] and [93]. In relation to the construction of privative clauses, his Honour referred to Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707 at [75]. However, as a matter of principle, there are difficulties with the reasoning. First, it appears to have been assumed in the course of argument that the purpose of such a statement was to ensure that members of the public did not assume that inspection could occur outside ordinary office hours in circumstances where council meetings often did take place in the evening. However, the purpose is not so limited. In part it is to inform the public that inspection may take place throughout ordinary office hours, without limitation to particular periods or particular days. Further, the statement is intended to reflect the legal obligation imposed on the council by s 100, which requires the council to keep a register of determinations of applications for development consent which is "to be available for public inspection, without charge, at the office of the council during ordinary office hours": s 100(2). It is by no means self-evident, nor so obvious as to go without saying, that the council is under any such obligation. The obligation is a creature of statute, not of some amorphous public understanding of how councils operate. Accordingly, the language adopted in the Regulation was deliberate and not inadvertent, nor irrational.

20. Furthermore, a notice requires writing: that which is not stated in writing is not stated in the notice. The idea that things are stated "implicitly rather than expressly" is, in this context, not an available characterization. So much appears to have been accepted at [51]. The conclusion that the notice did not comply with the Regulation is inescapable.

21. The next question is whether the failure resulted in invalidity. As explained in Project Blue Sky , whenever the exercise of a power is made conditional, there will always be a question of statutory construction as to whether non-compliance with the condition renders the exercise of power ineffective. As explained above, the legislative scheme for public participation, including the right to challenge potentially invalid exercises of power, involves a balance of considerations. One important consideration, as noted by the primary judge, is the potentially disruptive effect for a developer who has obtained a development consent but finds it is the subject of challenge long after consent was given. The importance of that consideration may be conceded: nevertheless, it would be relevant even in a situation where no notice had been given at all. The giving of notice, it may be noted, is not a matter within the power of the developer: only the consent authority or the council can give an effective notice.

22. On the other side of the balance is the diminution, in a practical sense, of rights given to the public at large to challenge possibly invalid consents in circumstances where no public notice is given of the determination of a development application. In Pallas Newco , Spigelman CJ noted at [75], in the passage relied upon by Biscoe J below, that s 101 does not provide an "absolute bar" because, unlike a general privative clause, it permits a challenge within a specified time, being a period of three months, which Biscoe J described as "reasonable": at [53]. However, in Pallas Newco the discussion of s 101 of the EP&A Act arose only indirectly, in considering whether the characterisation of the development in question involved a "jurisdictional fact" the validity of which depended upon the determination of the Court, or whether it was a fact which could be finally determined by the council. His Honour was concerned with the possibility that s 101 would not protect a decision of a council infected by jurisdictional error. Because he felt able not to apply a principle of strict construction to the section, he concluded that the word "validity" in s 101 was intended to protect decisions from jurisdictional error, including review of jurisdictional facts: at [79]. Accordingly, after the three month period, it was suggested that the only grounds of challenge would be those permitted by R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; 70 CLR 598 at 82-84.

23. Pallas Newco involved a significant shift of control over planning decisions from local consent authorities to the Land and Environment Court. Those issues are not at stake in the present proceeding. Section 101 requires the calculation of a period of time within which proceedings may be brought questioning the validity of a development consent. The critical question is the date at which the three month period commences to run. That is identified as the date of giving a notice in accordance with the Regulation. Whether or not a notice complies with the Regulation depends upon the proper construction of the Regulation, not s 101.

24. Factors which may indicate that a particular requirement of the Regulation is not mandatory, in the sense of being one absent which proper notice has not been given, may include the degree of precision with which the requirement is identified, by contrast with a requirement that involves elements of judgment or discretion. The matters required in the statement (ignoring infelicity of expression in the Regulation) are all matters which can readily be objectively identified and which do not require judgment on the part of the person drafting the statement. The same is not necessarily true of the description of the development and the land, but these matters are so critical to the purpose of the notice that even if correctly stated, the addition of further misleading information will invalidate the notice: see Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91, dealing with the giving of public notice of an amendment to a local environmental plan and compliance with the terms of then s 66 of the EP&A Act (since repealed).

25. The contents of a statement in accordance with paragraph (c) of cl 124(1) should be easily achieved, readily subject to replication in identical form in numerous notices and without risk of causing confusion. As noted above, the contents of the statement reflect the statutory obligation imposed on a council pursuant to s 100 of the EP&A Act. There is no reason to construe the Regulation as giving greater significance to one element over others. The fact that compliance with the Regulation should, at least in this respect, be straightforward takes some of the force from the prejudice which could result to a developer from the council's failure to comply if that were to prevent the commencement of the limitation period. Further, as noted by Spigelman CJ in Pallas Newco, the existence of a discretionary power to refuse relief, even in a case of invalidity, provides a safety valve in the event of non-compliance with the Regulation, even though not a full answer to the potential prejudice to a developer: [2004] NSWCA 422; 61 NSWLR 707 at [66]; the Court Act, s 25B (providing for alternative orders to declarations of invalidity in respect of invalid development consents).

26. It should be noted that this was not a case in which there was an attempted or part compliance with the requirements of the Regulation. The necessary statement included four elements; one was missing in its entirety.

27. The appellant sought to rely upon the judgment of the High Court in Scurr v Brisbane City Council [1973] HCA 39; 133 CLR 242, in support of the view that where a consent authority is required to give public notice by way of advertisement of a development application, an inadequate notification will lead to invalidity of the consent. Although the reasoning of Stephen J (with whom all other members of the Court agreed) adopted the then conventional distinction between mandatory and directory language in statutory enactments, sometimes described as a distinction between an essential preliminary to the exercise of power as compared with a procedural condition for the exercise of power, distinctions abandoned by this Court in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24 and by Project Blue Sky at [92]-[93], Scurr remains authority for the proper approach to planning legislation requiring public notification. Such requirements will generally be a precondition to the exercise of power. Since 1973, the legislature has placed enhanced emphasis on the importance of public participation, as reflected in the provisions of the EP&A Act referred to above: see also Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317 at 320 (Stein J).

28. The right to challenge the validity of a development consent is an empty promise if the existence of the consent is unknown. The effect of the right is not triggered by the actual knowledge of the applicant of the existence of the consent; rather, it is triggered by the giving of public notice, which is deemed sufficient to allow interested parties to acquire the relevant information. The content of appropriate public notice has not been left in the hands of the local council, even though it should be treated as a knowledgeable and responsible authority. Rather, the legislature, through delegated legislation, has prescribed that which is required for giving effective notice. No authority is conferred on the courts to determine that a non-complying notice will be effective in some cases, but perhaps not in others. Nor does the Act or the Regulation provide any criterion by which such an exercise could be undertaken. The only rational way to give effect to the expressed purpose of the Act, is to give effect to a notice given in accordance with the Regulation, but not one which fails to comply. This approach will have no consequence for a developer relying upon a valid consent, other than the incidental effect of permitting late challenges. Further, whilst the developer is not the party responsible for giving notice, in protecting its own interest, it might well consider for itself the validity of any notice given and invite the council to publish a further notice if it or its financier is concerned about that issue. There is no time limit on the giving of a valid notice.

29. The notice given by the Council on 8 July 2009 did not comply with the requirements of Regulation, cl 124(1)(c). Accordingly, it was not given "in accordance with the regulations" and therefore did not trigger the commencement of the limitation period in s 101. As a result, the proceedings brought by the appellant were not out of time.

Notice of contention

30. This conclusion requires that the Court consider the respondents' contention that the decision in the Land and Environment Court (to dismiss the application) be upheld because the grant of the consent was not invalid. This submission requires reference to the nature of the project.

(a) nature of project

31. The site of the proposed school was an undeveloped area, roughly rectangular, of some 2.6 hectares. The property was approximately 250 metres from north to south and 100 metres across. (There was an irregular excision from the rectangle at the northern end.) The northern end abutted for part of its frontage on to Hoxton Park Road, but the conditions of approval did not permit vehicular access from that major thoroughfare. The block fell away from Hoxton Park Road to a waterway and public reserve which ran along most of the southern boundary of the site. Crossing the southern boundary in approximately the middle (and thus also crossing the public reserve and waterway) was a road known as Pacific Palms Circuit. The line of the road continued across the south-western corner of the site and left the site approximately one-third of the way up the eastern boundary towards Hoxton Park Road. The road was undeveloped for the whole of its length across the site. To join the two arms of Pacific Palms Circuit it was necessary to construct a bridge across the public reserve and waterway at the southern end of the site.

32. The original development application appears to have included the construction of the bridge, but that element was removed. The bridge was to be constructed on the public reserve, which was vested in the Council. As noted above, that construction was able to take place without development consent under Part 4 of the EP&A Act. Nevertheless, because it was included in the original application, the application was accompanied by a statement of environmental effects which specifically addressed the roadway and the bridge over the creek.

33. The application originally envisaged a seven-stage development, to take place over seven years, with the roadway and bridge being completed in stage four. However, as a condition of approval, the Council required the connecting road to be completed prior to occupation of stage one. The primary judge summarised the approvals then required in the following terms at [5]:

"The development application was amended to exclude the bridge but not the rest of the connecting road on the basis that:

(a) the proponent would construct the bridge on behalf of the Council on Council-owned land (including part of the Land to be dedicated to the Council under a condition of consent);

(b) therefore

(i) development consent under Part 4 of the Environmental Planning and Assessment Act 1979 ( EPA Act ) was not required for construction of the bridge because cl 94(1) of State Environmental Planning Policy ( Infrastructure) 2007 ( ISEPP ) provides: "Development for the purpose of a road or road infrastructure facilities may be carried out by or on behalf of a public authority without consent on any land";

(ii) construction of the bridge required approvals by the Council under s 68 of the Local Government Act 1993 and by the Council as the roads authority under s 138 of the Roads Act 1993; and

(iii) construction of the bridge required separate assessment by the Council under Part 5 (ss 111 and 112) of the EPA Act , including assessment of its environmental impacts."

34. His Honour noted that the construction of the bridge would require clearing approximately 1,000 square metres of bushland, which largely comprised "an endangered ecological community, River-Flat Eucalypt Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner bioregions". He further explained the case presented for the applicant before him as involving two limbs, namely:

"(a) contrary to s 79C(1)(b) of the EPA Act the Council failed to consider the likely environmental impacts of the construction of the bridge on the natural environment, in particular on the [endangered ecological community] to be cleared; and

(b) contrary to s 79C(1)(a)(i), the Council failed to consider the requirements of cl 9(2)(d) State Environmental Planning Policy No 19 - Bushland in Urban Areas ( SEPP 19 ) relating to the bushland to be cleared for the bridge."

35. There was no dispute that the development application, so far as it involved development on land owned by the Federation, required approval under Part 4 of the EP&A Act. The procedures for assessment of a development application are set out in Part 4, Division 2, which includes s 79C. That provision, so far as presently material reads:

" 79C Evaluation

(1) Matters for consideration-general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument ...

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality ...."

36. The primary judge rejected the appellant's second argument, namely failure to consider the requirements of SEPP 19. The appellant has not sought to resurrect any argument based on that provision. Accordingly, the only live question is whether his Honour was correct in upholding the first submission.

37. The critical question identified by the primary judge was whether the environmental impact of the proposed development included the environmental impact of the construction of the bridge: at [19]. His Honour concluded at [20]:

"The 'development the subject of the development application' was the school and the connecting road for the Pacific Palms Circuit across the Land but excluding the bridge. The bridge is the missing link in the connecting road. The Pacific Palms Circuit is to provide access to the school. Under Condition 174 of the development consent the school cannot be occupied until the connecting road including the bridge are completed. Naturally, therefore, the proponent's intention was and is to build the bridge. The bridge is consistent with the [development control plan]. It can be seen that the bridge is inextricably bound up with the development and in my view it was likely, viewed at the time of the development consent, that the bridge would be constructed. It may be accepted that it was not certain because other statutory approvals and a Part 5 EPA Act assessment were necessary."

(b) first issue - did Council consider impact of bridge?

38. The contention filed by the Federation and the School raised, in substance, three challenges to his Honour's conclusions. The first contention, chronologically, challenged the conclusion that the Council did not consider the likely impact of the construction of the bridge on the endangered ecological community: being, ground 5, referring to the judgment at [16]. The factual assessment was made on the papers and can readily be reviewed by this Court. The material falls within a short compass. The appellant, in seeking to uphold his Honour's finding, relies, as did his Honour, upon an answer to an interrogatory given by the Council (which, in accordance with the principles stated in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72, filed a submitting appearance in the Land and Environment Court and in this Court). The interrogatory and answer, tendered in the Court below, stated:

"1. Interrogatory: In determining the subject development application, did the First Respondent:

(g) consider the likely impacts of the development on River Flat Eucalypt Forest?

Answer: No."

39. The respondents did not seek to call evidence to contradict that answer, but they relied upon a statement contained in a report of a Council officer which was available to the Council in reaching its determination on the development application. Some brief background is necessary to understand the process which produced the report. Approximately a decade before the present development application was lodged, Council had established a body known as the "Independent Hearing and Assessment Panel" to deal with objections to development applications and to make recommendations to Council. The application the subject of the present proceedings was referred to the Panel, which prepared a report dated 14 May 2009. The report recommended acceptance of the proposed development. In identifying the proposal, it noted that the bridge or "culvert crossing" would be the subject of separate consideration under Part 5 of the EP&A Act: report, p 6. Section 5 of the report considered the development in accordance with relevant provisions of the Council's relevant development control plan. In respect of the provision of that plan dealing with "bushland and fauna habitat preservation", the report stated:

"Site contains an endangered ecological community, within the portion of the site zoned for the drainage reserve/public reserve. This is not impacted on by the development."

40. Reading the report as a whole indicates that the Panel understood the development to include the construction and operation of the school, but not the construction and use of the bridge or culvert crossing. Council members who read the report, and in particular the passage set out above, would not have understood the comment as relating to the effects of the construction of the bridge. Accordingly, there was no inconsistency between that brief comment (at p 30 of a 109 page document) and the answer to the interrogatory. His Honour's conclusion, that the Council did not consider the impact of the construction of the bridge as part of its consideration of the development application, should be accepted. Indeed, as the submissions for the appellant (somewhat opportunistically) pointed out, the respondents' own written submissions in support of their contentions, in dealing with a ground addressed below, stated (at par 49):

"An examination of the development consent reveals that the Council adopted the correct approach in that it granted consent for the school and road and not the bridge and left the considerations of impact of the bridge upon the [endangered ecological community] to the other approvals and Part 5 considerations."

(c) second issue - would bridge likely be constructed?

41. The second (factual) topic raised by the notice of contention challenged a finding by the primary judge that, at the time of the consent, it was "likely that the bridge would be constructed" and that the grant of consent "locked in" the bridge works: grounds 3 and 4, referring to the judgment at [20] and [25]. That his Honour made such findings is not in dispute: the passage at [20] has been set out above.

42. The relevance of this finding depended upon the legal proposition (discussed below) that the "likely impacts" of a development included actions which were consequential upon carrying out the development, including actions of third parties. Accepting for present purposes the correctness of that premise, it is difficult to understand the basis of the challenge to the finding. As his Honour noted, a condition of the consent was that the bridge be constructed and the access road completed before the grant of an occupation certificate. It was not contended that his Honour was in error in taking that condition into account. The school was a major project, it was intended to accommodate approximately 800 students and employ between 50 and 55 teachers and clerical staff. The proposition that the respondents would pursue the development in circumstances where the occupation of the school was not at least "likely" is untenable. His Honour's assessment in this respect was correct.

(d) third issue - Council's obligation to consider impact of bridge

43. The third issue raised by the notice of contention involved the proposition that the impact of the construction of the bridge was not a matter required to be taken into account in determining the development application; accordingly, the failure of the Council to take such impacts into account did not invalidate its decision: grounds 1 and 2.

44. The resolution of this issue turns on the scope of the phrase "the likely impacts of that development" in s 79C(1)(b). The impact must be one flowing from the development the subject of the development application: the question is how remote a "likely" impact must be, in order to disqualify it from the scope of the consideration. This requires an evaluative judgment which will often not involve any bright-line boundary. An antecedent question may, therefore, be, who is to determine the point at which a particular impact is too remote to demand consideration? That question was not addressed in the submissions of this Court, it being assumed that it was a matter for the courts to answer. In the language of administrative law, whether a particular impact was required to be taken into account or not was a jurisdictional fact. On one approach, the issue can be avoided by accepting the common approach of the parties.

45. There is an alternative approach, arguably more consistent with principle, which would lead to the same result, but on a test more favourable to the appellant. If the law imposes an obligation on a decision-maker to consider a specified matter as a precondition to the validity of the decision, there will be an implied obligation to consider whether a factor potentially falling within the scope of the mandatory consideration does or does not so qualify. In the present case, the Council does not appear to have addressed that question either. However, if that be the correct approach, it will be sufficient if the appellant has identified a factor which could reasonably have been classified as mandatory, but was not addressed. Whether or not a decision-maker has unlawfully circumscribed the scope of its inquiry is a matter falling squarely within the scope of judicial review. Whether the Court should review the answer given by a decision-maker who has addressed the correct question gives rise to contestable issues: see Aronson, Dyer and Groves, Judicial Review Administrative Action (4 th ed, Law Book Co, 2009) at [4.295]-[4.305].

46. Once it is accepted that the primary judge was entitled to consider for himself whether the bridge was "likely" to be constructed as a consequence of approving the development application, and once the challenge to that decision is rejected, the respondents must show some implied restriction on the remoteness of the chain of likely consequences. Some such limitation must follow from the concept of "impact": as remoteness from the development increases, impact is likely to decrease, until it no longer has practical significance in terms of approving or refusing to approve the application. Further, the likelihood of a particular impact may diminish with remoteness. "Likely" in this context has the meaning of a "real chance or possibility" rather than more probable than not: Randwick Municipal Council v Crawley (1986) 60 LGRA 277 at 279-281; Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at 193.

47. The argument focused on what were described by the primary judge as "direct and indirect impacts": at [22]. His Honour referred to the decision of Bignold J in the Land and Environment Court in Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86, a case involving a proposed expansion of coal export facilities at Kooragang, near Newcastle. The case was not directly involved with the predecessor to s 79C(1)(b), as suggested by the primary judge, but with the contents of an environmental impact statement required for designated development. The issue concerned the operation of the coal loader: one environmental impact was a predicted increase in the volume of trains carrying coal from the Hunter Valley to Kooragang with a concomitant increase in noise and vibration for residential properties along the rail line. The Court in Bell accepted that impacts external to the land on which the development occurred were properly to be considered in an environmental impact statement. It was but a short step to conclude that such impacts were also relevant in determining a development application.

48. Further, his Honour made reference to the scope of likely impacts to be considered under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ("the Biodiversity Conservation Act") , as discussed in Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463 (Kiefel J) and, on appeal, Minister for Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 90; 139 FCR 24 (Black CJ, Ryan and Finn JJ). Again, the statutory scheme was not identical to the present regime. The Biodiversity Conservation Act included a prohibition on a person taking action that "is likely to have a significant impact on the world heritage values of a declared World Heritage property": s 12(1)(b). The Act nevertheless provided for the Minister to grant an approval in respect of what was described as "controlled action": ss 67 and 68. In deciding whether a particular action was a "controlled action", the Biodiversity Conservation Act required the Minister to consider all adverse impacts that the action was likely to have on the matter protected: s 75(2). The case involved a proposal to construct a dam on the Dawson River in Queensland, which, after joining with other rivers, entered the ocean near the Great Barrier Reef World Heritage Area, about 500 kilometres from the site of the proposed dam. The critical issue, not taken into account by the Minister, was the likely increase in irrigation of land adjacent to river beds with the potential for increasing concentration of nutrients and other agricultural pollutants downstream from the dam. The Minister's reasons indicated that he had put to one side "potential impacts of the irrigation of land by persons other than the proponents, using water from the dam": 139 FCR 24 at [22] and [23]. Kiefel J held that there was no such limitation on the extent of adverse impacts to be found in the language of the statute, given its purpose. The Full Court, stated at [53]:

"As a matter of ordinary usage that influence or effect may be direct or indirect. 'Impact' in this sense is not confined to direct physical effects of the action on the matter protected by the relevant provision .... It includes effects which are sufficiently close to the action to allow it to be said, without straining the language, that they are, or would be, the consequences of the action on the protected matter."

49. In the present case, the respondents' argument focused on the fact that the construction of the bridge was not merely excluded from the development application before the Council, but would itself be the subject of separate environmental assessment under Pt 5 of the EP&A Act. They sought to distinguish cases where there was "overlap" between two assessments, because more than one approval was required for the same activity.

50. In addressing this issue, his Honour noted that this was not a case in which there were to be dual assessments of a particular activity. Thus, the construction of the bridge was not to be assessed under Pt 4 and, as the EP&A Act expressly stated, anything for which consent was required under Pt 4 was not an activity requiring assessment under Pt 5: EP&A Act, s 110(1)(g). His Honour continued at [15]:

"If on the proper interpretation and application of s 79C(1)(b) to the unusual circumstances of this case, the effect of construction of the bridge had to be considered when determining the development application for the school and the road, it is irrelevant that there may be an overlap in one or more of the relevant considerations when carrying out the separate assessment required under Part 5: Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226, 172 LGERA 1 at [78]; CPT Manager Ltd (Acting as Trustee of the Broken Hill Trust) v Broken Hill City Council [2010] NSWLEC 69 at [109]."

51. The respondents asserted that these cases were distinguishable. In Australian Leisure and Hospitality , the applicant had obtained development consent for modifications to the New Brighton Hotel on The Corso at Manly. The consent approved use of public areas for outdoor seating and dining: at [18]. However, because the public area involved the footpath or a road, approval was also required under s 125 of the Roads Act 1993 (NSW). That approval was refused by the Council, leading to an appeal to the Court. A Commissioner of the Land and Environment Court, in considering the appeal, disregarded those factors which had already been the subject of consideration under s 79C in granting the development consent. Preston CJ held that approach to be erroneous, stating at [78]:

"If a planning issue or aspect is a relevant consideration to be taken into account in the exercise of the discretionary power in s 125 of the Roads Act, the commissioner in exercising that power was bound to take it into account. The fact that a planning issue or aspect might also have been taken into account in an earlier exercise of the power under the EPA Act to grant development consent is irrelevant. Each statutory power must be exercised taking account of the relevant considerations each statute requires the decision maker to take into account. The fact that there may be an overlap in one or more of the relevant considerations does not relieve a decision maker who takes the overlapping relevant considerations into account in an earlier exercise of power under one statute from the obligation to take those relevant considerations into account in a later exercise of power under another statute."

52. This principle was applied by Craig J in CPT Manager , a case involving determination by a local authority of a development application (under the EP&A Act) and an application, in respect of the same area of land, to close a laneway. His Honour rejected the proposition that "parallel systems of regulation" operating in relation to a proposal for development of land and requiring decisions of discretionary powers by a single consent authority, would necessarily give rise to an apprehension bias on the part of the authority once it had made a decision under one power, in considering the matter under another power.

53. The submission that these cases are distinguishable, in the sense that they involve different issues, may be accepted. However, they illustrate a common underlying principle, namely that the same environmental impacts of a development may need to be considered separately in the exercise of separate powers. Once it is found that a particular activity is a likely impact of the development for which approval is sought, the impacts flowing from that activity can only be excluded from consideration in respect of the development application if one reads into the language of s 79C(1)(b) an exclusion of environmental impacts which have been or are likely to be considered in relation to a separate development application required for that activity.

54. The basis for construing s 79C in this way was not elucidated. The case-law suggests three possible preconditions to the implication of a limitation on the express words adopted by the legislature:

(1) first, the apparent omission must be one which requires a remedy in order for the apparent statutory purpose to be achieved: Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292 at 299 (Hope JA) and 302 (McHugh JA, referring to the principles stated by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106);

(2) the words actually used in the statute must be reasonably open to the proposed construction: R v Young [1999] NSWCCA 166; 46 NSWLR 681 at [11] (Spigelman CJ), and

(3) the Court must be able to state with certainty the solution which the legislature would have adopted, absent inadvertence to the particular problem: Bermingham at 302E-F; Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276; 76 NSWLR 379 at [55] (Beazley JA) and [103].

55. One consequence of the proposed construction would be that where, as in the present case, two inter-related developments were each likely to have an impact on a particular aspect of the environment, the cumulative impact of the two developments would escape assessment. Although the cumulative impact of sequential, but unrelated, developments may not be a mandatory consideration, that does not provide a basis for imposing an implied limitation on the language of s 79C. To do so would not be consistent with the objects set out in s 5 of the EP&A Act.

56. First, it is not necessary to imply the proposed limitation into the text of s 79C in order to give effect to the purpose of the EP&A Act; indeed, such an implication may be contrary to the stated objects of the Act. Secondly, it is by no means clear that such an implication would, in the words of Spigelman CJ in Young , be a "text based" exercise. Thirdly, and consequently, it is not possible to say with certainty that the legislature would have adopted this approach if its attention had been drawn to the present situation. Accordingly, the respondents' contention must be rejected. The conclusion reached by the primary judge was correct.

Conclusions

57. The finding of the primary judge that the consent to the respondents' development application was invalid was correct. His Honour's conclusion that the proceedings were precluded by s 101 of the EP&A Act was incorrect. Accordingly, the appellant's entitlement to relief must be addressed; however, relief does not follow automatically: EP&A Act, s 124 and the Court Act, s 25B.

58. The Court should make the following orders:

(1) Allow the appeal and set aside the orders made in the Land and Environment Court on 14 December 2010.

(2) Remit the proceedings to the Land and Environment Court for determination of the appropriate relief.

(3) Order that the second and third respondents pay the appellant's costs of the appeal.

(4) Direct that the Land and Environment Court, on remitter, determine any order as to the costs of the proceedings in that Court.

59. MACFARLAN JA : I agree with Basten JA.

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