Hopkins and Anor v Tweed Shire Council and Anor [2001] NSWLEC 75

Hopkins and Anor v Tweed Shire Council and Anor [2001] NSWLEC 75

The council's decision was its resolution recorded in the minutes, which purported to grant consent to an extractive industry, a form of development prohibited within the relevant zone under the Tweed Local Environmental Plan 2000. The subsequent notice describing the determination as consent for earthworks did not reflect the council's determination and was not in accordance with s 81 of the Environmental Planning and Assessment Act 1979, so no effective consent came into operation. In any event, the real nature of the development described in the Environmental Impact Statement was not earthworks but a proposal involving staged extraction and winning of material for use elsewhere, and...

Jurisdiction
Australia
Judgment Date
20 April 2001
Procedural Posture
Class 4 Proceedings / Judgment on Application for Declarations Concerning Development Application K99/957 and Development Consent
Outcome
Declarations granted; council resolution void and of no effect; costs reserved.
Legal Topics
['development Application' 'development Consent' 'extractive Industry' 'earthworks' 'designated Development' 'local Environmental Plan Zoning' 'validity of Notice of Determination' 'prohibited Development']
['environmental and Planning Law' 'local Government Law'] ['development Application' 'development Consent' 'extractive Industry' 'earthworks' 'designated Development' 'local Environmental Plan Zoning' 'validity of Notice of Determination' 'prohibited Development']

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Procedural Posture

Class 4 Proceedings / Judgment on Application for Declarations Concerning Development Application K99/957 and Development Consent

Legal Issues

  1. 1 ['Whether the development described in development application K99/957 and the Environmental Impact Statement was properly characterised as earthworks permissible with consent or as extractive industry/prohibited development under Tweed Local Environmental Plan 2000.' "Whether Tweed Shire Council's resolution granting consent to an extractive industry was unlawful and void because the use was prohibited in the relevant zone." 'Whether the notice of determination describing the proposed development as earthworks was valid where it did not reflect the council resolution granting consent to an extractive industry.' 'Whether the Court should exercise discretion to refuse relief despite invalidity.']

Ratio Decidendi

The council's decision was its resolution recorded in the minutes, which purported to grant consent to an extractive industry, a form of development prohibited within the relevant zone under the Tweed Local Environmental Plan 2000. The subsequent notice describing the determination as consent for earthworks did not reflect the council's determination and was not in accordance with s 81 of the Environmental Planning and Assessment Act 1979, so no effective consent came into operation. In any event, the real nature of the development described in the Environmental Impact Statement was not earthworks but a proposal involving staged extraction and winning of material for use elsewhere, and...

Court Disposition

Declarations granted; council resolution void and of no effect; costs reserved.

Orders

  • ['A declaration that the development described in development application K99/957 and the Environmental Impact Statement in support thereof in respect of Lots 9 and 10 DP 822830 and part Lot 1 DP 823640 Kirkwood Road and Fraser Drive, Tweed Heads South is not development for a permissible purpose, namely,...