Kinloch v Newcastle City Council [2016] NSWLEC 109

Kinloch v Newcastle City Council [2016] NSWLEC 109

The development application should have been referred to the Development Applications Committee for determination because the conflicts with the Development Control Plan, specifically regarding building envelope (setbacks) and view sharing, were more than minor. The Development Officer acted outside the scope of delegated authority in granting consent, rendering the development consent invalid.

Parties
First Applicant: Diane Kinloch; Second Applicant: Alastair Kinloch; First Respondent: Vicki Gai Dart; Second Respondent: Newcastle City Council; Third Respondent: Cameron James Dart
Jurisdiction
Australia
Judgment Date
25 August 2016
Procedural Posture
Judicial Review / Final Orders
Outcome
Application allowed; development consent declared invalid and restraining orders made
Legal Topics
Instrument of Delegation, Development Consent, Procedural Fairness, Delegation of Decision Making, Development Control Plan Compliance, Judicial Review
Planning and Environment Law Administrative Law Instrument of Delegation Development Consent Procedural Fairness Delegation of Decision Making Development Control Plan Compliance Judicial Review

Case Brief

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Parties

Diane Kinloch

First Applicant

Alastair Kinloch

Second Applicant

Vicki Gai Dart

First Respondent

Newcastle City Council

Second Respondent

Cameron James Dart

Third Respondent

Procedural Posture

Judicial Review / Final Orders

Legal Issues

  1. 1 Whether Council's Development Officer was empowered under the Instrument of Delegation to grant development consent to DA 2014/296 without referral to the Development Assessment Committee
  2. 2 Interpretation of the phrase 'except where the conflict is minor and strict compliance would be unreasonable or unnecessary' in the Instrument of Delegation
  3. 3 Whether conflicts with the Development Control Plan were 'minor' so as to allow determination without referral to the Committee

Ratio Decidendi

The development application should have been referred to the Development Applications Committee for determination because the conflicts with the Development Control Plan, specifically regarding building envelope (setbacks) and view sharing, were more than minor. The Development Officer acted outside the scope of delegated authority in granting consent, rendering the development consent invalid.

Court Disposition

Application allowed; development consent declared invalid and restraining orders made

Orders

  • The Development Consent issued in response to DA 2014/296 is declared invalid.
  • The Second Respondent (Council) is restrained from issuing approval to build under that Consent.