Manning v Bathurst Regional Council (No 2) [2013] NSWLEC 186: A consideration of Wednesbury unreasonableness in the context of notification requirements

Following the High Court's consideration of Wednesbury unreasonableness earlier this year (see Minister for Immigration and Citizenship v Li [2013] HCA 18), the Land and Environment Court (Court) has been asked to consider whether the decision by a consent authority not to notify an adjoining land owner of two development applications was 'manifestly unreasonable'.

BACKGROUND

Two development applications (DAs) were lodged with Bathurst Regional Council (Council) for the construction of a swimming pool, retaining wall and pool safety wall (Development). The first DA concerned the construction of the swimming pool itself, a safety fence and a retaining wall (First DA). The second DA concerned a pool fence, pool filter cover and privacy screen (Second DA).

The plans and other documents forming the DAs were not sophisticated - involving drawings completed by hand - and were lodged by a pool construction company on behalf of the owner of land (Owner).

NOTIFICATION REQUIREMENTS UNDER THE DCP

The Bathurst Regional (Interim) Development Control Plan 2011 (Bathurst DCP) was the applicable DCP at the time the DAs were lodged. The Bathurst DCP set out the notification requirements for development applications and, relevantly, provided:

2.3.1 What is notified development?

The factors that Council will take into consideration in determining whether a development application will be notified and to whom are as follows:

the views to and the views from surrounding land, potential overshadowing of surrounding land, privacy of surrounding land, potential noise transmission to the surrounding land, the likely visual impact of the proposed building in relation to the streetscape, and any other issues considered by Council to be relevant to the application. [DCP Criteria]

2.3.2 Who will be notified?

Generally written notice of a notified Development Application will be given to the owners of land directly adjoining the land on which the development is intended to occur. For the purposes of determining which properties are adjoining, Council will generally exclude properties which are separated by a road, pathway or other significant feature. Further larger properties or adjoining properties unlikely to be affected by the proposed development may also not be notified.

Council's development assessment officer (First Officer) formed the opinion that the development the subject of the First DA would not have an "adverse impact" on the Applicant's land, which...