Curac v. Shoalhaven City Council and Cowman & Royston Pty Ltd Country/Territory Australia Type of court Others Date Sep 24, 1993 Source UNEP, InforMEA Court name Land and Environment Court of New South Wales Judge Stein Reference number No 40102 of 1993 Language English Subject Mineral resources, Legal questions Keyword Legal proceedings/administrative proceedings Public participation Abstract The applicant filed an application with the Court seeking a declaration that a development consent granted on 12 May 1993 by the Shoalhaven City Council to Cowman & Royston Pty Limited (the second respondents) for a shale quarry at Nowra Hill was void. She alleged a breach of s84 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) by the Council in the advertising of the proposed development. The Council denied any breach. Alternatively it submitted that the requirements were directory, not mandatory, and substantial compliance had occurred. Lastly, both respondents submitted that if a breach had occurred, no relief should be granted for discretionary reasons. Section 84(1)(c) of the Act required that where a development application was made for designated development (as in the subject application) the consent authority should "cause notice of that development application to be published in a newspaper circulating in the locality". Subsection (5) provided that when the notice referred to a period exceeding 30 days, the council had to notify the applicant. Sections 86 and 87 of the Act were linked with s84. They allowed any person to inspect the development application referred to in the notice and provided for the making of objections during the specified period. The Council, after receiving the development application, published a notice in the South Coast Register. This notice specified a period of 20 days for the lodgment of submissions. The applicants alleged that by giving a period of 20 days for objection, not 30 days, the Council breached s84 of the EP&A Act. The court held that the notice requirement for designated development in s84 was designed to ensure the fullest possible opportunity for public participation in the planning process. The legislature was careful to distinguish between designated development (being development likely to be environmentally sensitive or controversial having regard to potential environmental impacts) and other development applications where lesser requirements were necessary. S84(5) referred to circumstances where the "period" of exhibition exceeded 30 days. What was plain was that 30 days was intended to be the minimum period of notice under s84. In the opinion of the court there was no doubt that the 30 day requirement for the notice prescribed by Regulation 37(e) was intended to be a mandatory one in the public interest and required strict adherence. The requirement had been breached and this had serious implications for rights concerning public participation. It was not a technical breach. Should the court have been wrong in the above conclusions, and the 30 days requirement was directory, being purely procedural, then it was patent that there had not been substantial compliance. Twenty days was not 30 days and notwithstanding the notoriety of the application in the area and the number of objections, one would never know if some members of the public were deprived of the opportunity to object to the development application and acquire the rights accompanying such objection. At the same time, the consent authority may have been deprived of the opportunity to consider any such submissions in making its determination. However, it was submitted that nonetheless the consent should not be void because discretionary considerations ought to lead the Court not to grant relief. The respondents argued that because of the elongated processing of the development application by the Council, its notoriety in the area, public meetings, a site inspection, petitions, large numbers of objectors and the existence of an active residents group lead by the applicant and her husband, the Court should not intervene and declare the consent null and void. The court found that the problem for the respondents on the issue of discretion was that they could not be sure that some members of the public would not have come forward with objections if there had been compliance with the requirement of the statute. One would never know. As the applicant submitted it was the rights of the unknown objectors which the applicant pressed. Discretionary matters therefore should not lead the Court to decline to make a declaration of invalidity. Thus, the court declared that the development consent was void. Full text 157.html