Farah v Warringah Council & Others [2006] NSWLEC 191

Farah v Warringah Council & Others [2006] NSWLEC 191

The development application, on its terms, related only to Lot 3, 723 Warringah Road, and did not require the applicants' written consent as owners of Lots 401 and 402; nor did the consent authorise use or works on the applicants' land. The procedural fairness and Dowsett assessment grounds were not made out. However, access arrangements were a critical issue and the deferred commencement condition required a Traffic Management Plan dealing with matters capable of changing the operation, works, use of rights of way and environmental impacts. Council therefore left known and unknown traffic management issues for future determination and was not in a position to properly understand and...

Jurisdiction
Australia
Judgment Date
26 April 2006
Procedural Posture
Challenge to Deferred Commencement Development Consent for a Proposed Child Care Centre / Judgment After Hearing; Pending Appeal
Outcome
Development consent declared void and of no effect; restraint ordered against use of the applicants' land otherwise than in accordance with the Environmental Planning and Assessment Act 1979; costs reserved.
Legal Topics
["owner's Consent for Development Applications" 'identification of Land to Which a Development Application Relates' 'deferred Commencement Consent and Finality' 'procedural Fairness to Objectors' 'traffic Management Plans' 'rights of Carriageway']
['environmental Planning and Assessment' 'development Consent' 'administrative Law' 'property Law'] ["owner's Consent for Development Applications" 'identification of Land to Which a Development Application Relates' 'deferred Commencement Consent and Finality' 'procedural Fairness to Objectors' 'traffic Management Plans' 'rights of Carriageway']

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Procedural Posture

Challenge to Deferred Commencement Development Consent for a Proposed Child Care Centre / Judgment After Hearing; Pending Appeal

Legal Issues

  1. 1 ["Whether the development application related to the applicants' land so that their written consent as owners was required." "Whether the development consent authorised works on, or a change of use of, the applicants' land." 'Whether the council denied procedural fairness by not notifying or advertising the Traffic Management Plan lodged to satisfy deferred commencement conditions.' 'Whether the council failed to take into account the Ray Dowsett traffic assessment.' 'Whether the deferred commencement condition left a matter of fundamental importance unresolved so that the development application was not finally determined.' 'Whether the consent was repugnant to rights of carriageway or proprietary rights under the Real Property Act 1900.']

Ratio Decidendi

The development application, on its terms, related only to Lot 3, 723 Warringah Road, and did not require the applicants' written consent as owners of Lots 401 and 402; nor did the consent authorise use or works on the applicants' land. The procedural fairness and Dowsett assessment grounds were not made out. However, access arrangements were a critical issue and the deferred commencement condition required a Traffic Management Plan dealing with matters capable of changing the operation, works, use of rights of way and environmental impacts. Council therefore left known and unknown traffic management issues for future determination and was not in a position to properly understand and...

Court Disposition

Development consent declared void and of no effect; restraint ordered against use of the applicants' land otherwise than in accordance with the Environmental Planning and Assessment Act 1979; costs reserved.

Orders

  • ['A declaration that the development consent granted by the first respondent for the property known as 723 Warringah Road, Forestville in relation to Development Application Number 2003/09/09 ("the consent") is void and of no effect.' "An order that the second and third respondents, their servants, agents or...