Wolgan Action Group Incorporated v Lithgow City Council [2001] NSWLEC 199

Wolgan Action Group Incorporated v Lithgow City Council [2001] NSWLEC 199

The determination modifying development consent No. 105/92 was void because council failed to comply with the statutory exhibition requirement in cl 72B of the Environmental Planning and Assessment Regulation 1994. When an objector attended council in response to the notification, council did not produce the modification application or all accompanying information, and the omission was not later rectified. Those documents were vital to public participation, and there was not substantial compliance with the legislative notification and inspection regime. The other grounds did not justify relief: it was reasonably open to council to be satisfied that the modified development remained...

Jurisdiction
Australia
Judgment Date
29 August 2001
Procedural Posture
Class 4 Application Seeking Declarations Concerning Modification of Development Consent / Final Judgment
Outcome
Declaration made that the council's determination of the modification application was void; amended Class 4 application otherwise dismissed; costs reserved.
Legal Topics
['modification of Development Consent' 'substantially the Same Development' 'notification and Exhibition Requirements' 'procedural Fairness and Legitimate Expectation' 'prescribed Fees for Modification Applications' 'manifest Unreasonableness' 'role of the Environment Protection Authority' 'integrated Development']
['environmental Law' 'planning Law' 'administrative Law'] ['modification of Development Consent' 'substantially the Same Development' 'notification and Exhibition Requirements' 'procedural Fairness and Legitimate Expectation' 'prescribed Fees for Modification Applications' 'manifest Unreasonableness' 'role of the Environment Protection Authority' 'integrated Development']

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Procedural Posture

Class 4 Application Seeking Declarations Concerning Modification of Development Consent / Final Judgment

Legal Issues

  1. 1 ['Whether the development as modified was substantially the same development as the development for which consent had already been granted under s 96(2)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether Lithgow City Council complied with s 96(2)(c) of the Environmental Planning and Assessment Act 1979 and cl 72B of the Environmental Planning and Assessment Regulation 1994 by making the application and accompanying information available for inspection.' 'Whether failure to pay the prescribed fee before notification and most of the exhibition period invalidated the notification process or determination.' 'Whether the notification and advertisement gave rise to a legitimate expectation that submissions could be made on the basis of access to all relevant documents.' "Whether the council's determination was manifestly unreasonable." 'Whether the Environment Protection Authority, rather than the council, was the appropriate regulatory authority or consent authority.']

Ratio Decidendi

The determination modifying development consent No. 105/92 was void because council failed to comply with the statutory exhibition requirement in cl 72B of the Environmental Planning and Assessment Regulation 1994. When an objector attended council in response to the notification, council did not produce the modification application or all accompanying information, and the omission was not later rectified. Those documents were vital to public participation, and there was not substantial compliance with the legislative notification and inspection regime. The other grounds did not justify relief: it was reasonably open to council to be satisfied that the modified development remained...

Court Disposition

Declaration made that the council's determination of the modification application was void; amended Class 4 application otherwise dismissed; costs reserved.

Orders

  • ['A declaration that the determination by the Lithgow City Council of an application to modify development consent No. 105/92 notified to Coal Link on 27 June 2000 is void.' 'The amended application class 4 is otherwise dismissed.' 'The exhibits may be returned.' 'Costs reserved.']