Chambers v Maclean Shire Council & 2 Ors [2003] NSWCA 100

Chambers v Maclean Shire Council & 2 Ors [2003] NSWCA 100

The minimum performance criterion in cl 4 of Schedule 1 to SEPP 62 had to be applied to the specific development site, or at least could not be satisfied by a broader area that was only generally within the specified elevations. Because about 40% of the Smith farm was below 1 metre AHD, the proposed prawn farm and research station did not comply with the minimum performance criteria and was prohibited development. That classification was jurisdictional to the Council's power under the Environmental Planning and Assessment Act 1979. The Smiths' application to the Council was not a valid application for prohibited development, the Council had no power to consent to it, and the development...

Jurisdiction
Australia
Judgment Date
13 June 2003
Procedural Posture
Appeal From Class 4 Judicial Review Proceedings in the Land and Environment Court Concerning Development Consent / Appeal to the New South Wales Court of Appeal From Orders of Sheahan J
Outcome
Appeal allowed; orders of Sheahan J set aside; declarations made that the development was prohibited and that the development application and consent were void and of no effect.
Legal Topics
['prohibited Development' 'development Consent' 'jurisdictional Fact' 'construction of State Environmental Planning Policy No 62' 'aquaculture Development' 'judicial Review' 'retrospective Application of Planning Amendments' 'discretionary Relief']
['environmental Planning Law' 'administrative Law' 'local Government'] ['prohibited Development' 'development Consent' 'jurisdictional Fact' 'construction of State Environmental Planning Policy No 62' 'aquaculture Development' 'judicial Review' 'retrospective Application of Planning Amendments' 'discretionary Relief']

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Procedural Posture

Appeal From Class 4 Judicial Review Proceedings in the Land and Environment Court Concerning Development Consent / Appeal to the New South Wales Court of Appeal From Orders of Sheahan J

Legal Issues

  1. 1 ['Whether leave to appeal was required or whether the Land and Environment Court order was final in effect.' 'Whether the word "area" in cl 4 of Schedule 1 to State Environmental Planning Policy No 62 referred to the development site or a broader district or region.' "Whether compliance with the minimum performance criteria for pond-based aquaculture was a jurisdictional fact determining the Council's power to grant development consent." 'Whether the Council had power under the Environmental Planning and Assessment Act 1979 to consent to a prohibited development.' "Whether State Environmental Planning Policy No 62 – Sustainable Aquaculture (Amendment No 1) applied to the Smiths' development application or resuscitated the Council's consent." 'Whether discretionary considerations justified refusing the declarations sought by Ms Chambers.']

Ratio Decidendi

The minimum performance criterion in cl 4 of Schedule 1 to SEPP 62 had to be applied to the specific development site, or at least could not be satisfied by a broader area that was only generally within the specified elevations. Because about 40% of the Smith farm was below 1 metre AHD, the proposed prawn farm and research station did not comply with the minimum performance criteria and was prohibited development. That classification was jurisdictional to the Council's power under the Environmental Planning and Assessment Act 1979. The Smiths' application to the Council was not a valid application for prohibited development, the Council had no power to consent to it, and the development...

Court Disposition

Appeal allowed; orders of Sheahan J set aside; declarations made that the development was prohibited and that the development application and consent were void and of no effect.

Orders

  • ['The amendment sought by Ms Chambers to the notice of appeal be allowed.' 'The appeal be allowed.' 'The orders made by Sheahan J be set aside.' 'A declaration be made that, as at 11 July 2001, the development of Lot 12 Deposited Plan 1009500 School Road, Palmers Island as a prawn farm and research station was a...