The two recent Land and Environment Court (LEC) decisions of
Fenwick v Woodside Properties Pty Ltd  NSWLEC 104
(Fenwick) and Protect our Parks Incorporated v
Wollongong City Council and Ors  NSWLEC 99 (Protect
our Parks) illustrate how a failure to comply with the public
notification requirements under the Environmental Planning and
Assessment Act 1979 (EPA Act) can invalidate development or
modification approvals granted by Councils.
Councils need to ensure that notification of development
applications and modifications comply with the requirements of the
EPA Act—a failure to do so can render a council's
ultimate decision on the development unlawful.
In Fenwick, Wingecarribee Shire Council granted
Woodside Properties Pty Ltd (Woodside) an approval for a
subdivision on land at Bundano. Woodside sought modifications to
the approval on 14 June 2013 (modification 1), 12 August 2014
(modification 4) and 25 February 2016 (modification 5). These
modifications were subsequently approved by the Council, however,
only modification 5 was publicly notified.
The Applicant, who was the owner of the adjoining land, brought
Class 4 proceedings seeking a declaration that modifications 1, 4
and 5 were invalid. The Applicant contended that modifications 1
and 4 were invalid on the basis that they had not been publicly
notified in line with s 96(2) of the EPA Act. According to the
Applicant, modification 5 was also invalid as the Council had taken
into account an irrelevant consideration, namely modifications 1
and 4, when determining modification 5.
The Respondents ultimately conceded that modifications 1 and 4
had not been publicly notified as required. On this basis, the
Court held that modifications 1 and 4 were invalid as they
contained jurisdictional errors. Modification 5 was also found to
be invalid as it was premised on the earlier invalid
Protect our Parks
In Protect our Parks, Wollongong City Council was the
appointed trustee and trust manager of Stuart Park—a Crown
reserve in North Wollongong. Skydive the Beach and Beyond Sydney
Wollongong Pty Ltd (Skydive) maintained a commercial relationship
with the Council to use Stuart Park as part of its skydiving
activities, which included the occupation of a building for
administrative purposes pursuant to a lease from the Council.
In 2014, Skydive sought to demolish the building and construct a
new administration building within the park. Construction of the
proposed new administration building required demolition of two
Council buildings; the existing administration building and
amenities building. The development application was later amended
by Skydive to alter the location of the proposed administration
building, however, the re-notification of the amended application
failed to mention the demolition of the existing Council
In the Class 4 proceedings, the Applicant contended that the
Council's description of the amended development proposal in
its public notice was insufficient as it did not mention the
demolition of the existing buildings. On this basis, the Applicant
submitted that the Council's notice did not comply with the
public notification requirements contained in the relevant
Development Control Plan, in line with s 79A(2) of the EPA Act
The Court adopted the reasoning in Hoxton Park Residents
Action Group Inc v Liverpool City Council that "a notice
which is inadequate in a material respect is no notice at
all". It was therefore held that the Council's
notification of the amended development proposal was defective in a
material respect as it failed to refer to the demolition of the
existing Council buildings.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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A lessee will need to demonstrate that the genuine interests of the lessor will be protected if relief is granted.
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