The Applicant in this matter, Ms Fenwick, is a resident of Bundanoon in Wingecarribee Shire in the Southern Highlands. In 2006, a development consent was granted by Wingecarribee Shire Council approving the subdivision of land adjacent to the Applicant’s home. This consent was subject to conditions which included limiting the height of new buildings to single story. For a number of years, the consent lay dormant. When the development works commenced, the Applicant discovered that the Council had approved applications made by the developer to modify the consent without any public notification process having taken place. As a consequence of the modifications, the condition that restricted the maximum height of buildings had been deleted (among other things).
The team at Hones Lawyers were engaged by the Applicant to challenge the validity of the disputed modification approvals. Prior to the hearing date, the developers lodged a further modification application with the Council in an apparent attempt to remedy the earlier flaws. This further application was also approved by the Council. The proceedings were amended to include a challenge to this further modification. The matter was heard by Justice Pepper of the Land and Environment Court on Monday 15 August 2016. Pepper J granted an extension of time to challenge the modifications under Rule 59.10 of the Uniform Civil Procedure Rules 2005, given that the three month time limit had elapsed, on the basis that the Applicant had not been made aware of the modifications made in preceding years until the work had actually commenced in 2015, at which point she had commenced proceedings with ‘commendable alacrity’. The Respondents conceded that the earlier modifications had not been publicly notified as required by the Environmental Planning and Assessment Act 1979 (NSW) and the associated regulation, and were therefore invalid. Further, it was conceded that any modification that took into account an irrelevant consideration would also be invalid (Minister for Aboriginal Affairs v Peko-Wallsend Ltd  HCA 40; (1986) 162 CLR 24). For this reason, the later modification was ‘infected’ by the invalidity of the earlier modifications to the consent which meant that it was also invalid. In the opinion of Pepper J, the Respondents were correct to make these concessions and, accordingly, the judge found in favour of our client. The outcome was that the modifications to the consent were invalid and of no effect, meaning that the original conditions, including the restriction on the height of buildings, were restored to full effect.
You can read Pepper J’s judgment here.
Hones Lawyers wishes to thank barristers Philip Clay SC and Natasha Hammond who acted as counsel for the Applicant in this matter. Hones Lawyers recommends that both local councils and developers take note of this decision in order to avoid the consequences of failing to ensure that any modification applications to development consents are correctly processed. Otherwise, they could potentially face the same challenge as that successfully mounted by our client in this matter. If you would like to obtain legal advice for a dispute involving planning, environmental or local government law, get in touch with the team at Hones Lawyers.