Azzopardi & Ors v Gosford City Council & Anor [2002] NSWCA 234

Azzopardi & Ors v Gosford City Council & Anor [2002] NSWCA 234

By majority, the appellants failed to establish that the relevant watercourse on Parit Pty Ltd's land was a river within the meaning of the Rivers and Foreshores Improvement Act 1948 (NSW). Although the development probably involved some minor excavation within 40 metres of the dam that was more than inconsequential, the absence of a river meant the development was not shown to require a Part 3A permit and therefore was not shown to be integrated development. In any event, any breach would have been technical and relief would properly have been refused in the Court's discretion.

Jurisdiction
Australia
Judgment Date
19 July 2002
Procedural Posture
Class 4 Proceedings Challenging Validity of a Development Consent / Appeal From Dismissal by the Land and Environment Court
Outcome
Appeal dismissed with costs.
Legal Topics
['integrated Development' 'protected Land' 'river Definition' 'excavation Within 40 Metres of Protected Waters' 'development Consent Validity' 'discretionary Refusal of Relief']
['environmental Law' 'planning Law' 'rivers and Foreshores Regulation'] ['integrated Development' 'protected Land' 'river Definition' 'excavation Within 40 Metres of Protected Waters' 'development Consent Validity' 'discretionary Refusal of Relief']

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Procedural Posture

Class 4 Proceedings Challenging Validity of a Development Consent / Appeal From Dismissal by the Land and Environment Court

Legal Issues

  1. 1 ["Whether the watercourse on Parit Pty Ltd's land was a river within the meaning of the Rivers and Foreshores Improvement Act 1948 (NSW)." 'Whether the approved development involved excavation or removal of material from protected land requiring a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948 (NSW).' 'Whether any failure to follow integrated development procedures under the Environmental Planning and Assessment Act 1979 (NSW) invalidated the development consent or warranted relief.']

Ratio Decidendi

By majority, the appellants failed to establish that the relevant watercourse on Parit Pty Ltd's land was a river within the meaning of the Rivers and Foreshores Improvement Act 1948 (NSW). Although the development probably involved some minor excavation within 40 metres of the dam that was more than inconsequential, the absence of a river meant the development was not shown to require a Part 3A permit and therefore was not shown to be integrated development. In any event, any breach would have been technical and relief would properly have been refused in the Court's discretion.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']