Bentley & Ors -V- Drummoyne Council & Ors [1999] NSWLEC 84

Bentley & Ors -V- Drummoyne Council & Ors [1999] NSWLEC 84

DA 117/97 and BA 55/98 were validly granted because plan A01 and the BA plans provided sufficient information by reference to natural ground level for Council to assess the proposal, and approval of the BA plans was not Wednesbury unreasonable. However, the purported approval on 23 September 1998 was not a lawful amendment because it did not follow the procedure in s 106 of the Local Government Act 1993 and did not authorise construction with a ground floor slab at RL 10.55 by reference to the RL 10.00 benchmark. In the appeal, Council was entitled to revoke BA 55/98 because the approval was obtained by misrepresentation of the intended building levels within s 109 of the Local Government...

Jurisdiction
Australia
Judgment Date
08 April 1999
Procedural Posture
Class 4 Proceedings Challenging Development Consent, Building Approval and Purported Amendment; Class 2 Appeal Against Revocation of Building Approval / Final Determination, With Leave to Bring in Draft Consent Orders
Outcome
DA 117/97 and BA 55/98 were held validly granted; the purported amendment of BA 55/98 on 23 September 1998 was held not lawful; the appeal in Matter No. 20009 of 1999 against revocation of BA 55/98 was dismissed; final orders were to be settled.
Legal Topics
['development Consent' 'building Approval' 'revocation of Building Approval' 'wednesbury Unreasonableness' 'natural Justice' 'misrepresentation in Plans' 'notification Procedure' 'development Control Plan Compliance']
['planning and Environment Law' 'administrative Law' 'local Government and Building Control'] ['development Consent' 'building Approval' 'revocation of Building Approval' 'wednesbury Unreasonableness' 'natural Justice' 'misrepresentation in Plans' 'notification Procedure' 'development Control Plan Compliance']

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Procedural Posture

Class 4 Proceedings Challenging Development Consent, Building Approval and Purported Amendment; Class 2 Appeal Against Revocation of Building Approval / Final Determination, With Leave to Bring in Draft Consent Orders

Legal Issues

  1. 1 ['Whether development consent DA 117/97 was valid where Council allegedly relied on inadequate assessment based on misleading and inaccurate information about relative levels and building height' 'Whether the notification procedure was inadequate or flawed by providing a reduced copy of a plan containing allegedly misleading, inaccurate and inadequate information' 'Whether building approval BA 55/98 was invalid because the plans allegedly did not conform to DC 117/97 and contained incorrect and inconsistent information' 'Whether the purported approval of amended levels on 23 September 1998 was lawful' 'Whether the second and third respondents complied with cl 10(e) and cl 10(f) of DCP No. 4' 'Whether Council reasonably revoked BA 55/98 on the basis that the approval was obtained by misrepresentation']

Ratio Decidendi

DA 117/97 and BA 55/98 were validly granted because plan A01 and the BA plans provided sufficient information by reference to natural ground level for Council to assess the proposal, and approval of the BA plans was not Wednesbury unreasonable. However, the purported approval on 23 September 1998 was not a lawful amendment because it did not follow the procedure in s 106 of the Local Government Act 1993 and did not authorise construction with a ground floor slab at RL 10.55 by reference to the RL 10.00 benchmark. In the appeal, Council was entitled to revoke BA 55/98 because the approval was obtained by misrepresentation of the intended building levels within s 109 of the Local Government...

Court Disposition

DA 117/97 and BA 55/98 were held validly granted; the purported amendment of BA 55/98 on 23 September 1998 was held not lawful; the appeal in Matter No. 20009 of 1999 against revocation of BA 55/98 was dismissed; final orders were to be settled.

Orders

  • ['DA 117/97 and BA 55/98 were validly granted by the first respondent.' 'The purported amendment of BA 55/98 on 23 September 1998 was not a lawful amendment and did not authorise construction of a building with a ground floor slab at RL 10.55 by reference to a benchmark of RL 10.00 established by Surveyor Eldridge...