Fitzgerald v City of Canada Bay Council and Ors [2004] NSWLEC 293

Fitzgerald v City of Canada Bay Council and Ors [2004] NSWLEC 293

The s 101 notice accurately described the land as 2 (Lot 31) Admiralty Drive, Breakfast Point and the development as a new two storey dwelling. Clause 124 did not require the notice to use a so-called proper or commonly known address, did not require the address to be on a public road, and did not require repetition of descriptions used in earlier notification documents. Because the notice complied with cl 124 and was not misleading, it had the effect that the validity of the consent could not be questioned in these proceedings, which were commenced outside the three-month period.

Jurisdiction
Australia
Judgment Date
30 April 2004
Procedural Posture
Class 4 Proceedings / Separate Question of Law Set Down for Determination Pursuant to Pt 31 of the Supreme Court Rules
Outcome
Proceedings dismissed; the public notice had the effect that the validity of the development consent could not be questioned in the proceedings.
Legal Topics
['public Notice of Development Consent Under S 101' 'description of Land in Public Notice' 'validity Challenge to Development Consent' 'time Limit for Class 4 Proceedings']
['environmental Planning and Assessment' 'land and Environment'] ['public Notice of Development Consent Under S 101' 'description of Land in Public Notice' 'validity Challenge to Development Consent' 'time Limit for Class 4 Proceedings']

Case Brief

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Procedural Posture

Class 4 Proceedings / Separate Question of Law Set Down for Determination Pursuant to Pt 31 of the Supreme Court Rules

Legal Issues

  1. 1 ['Whether the public notice of the granting of consent to Development Application 710/02 published in The District News on Tuesday 4 February 2003 had the effect that the validity of the consent could not be questioned in the proceedings.' 'Whether the notice complied with cl 124(1)(b) of the Environmental Planning and Assessment Regulation 2000 by describing the land and the development the subject of the development consent.' 'Whether the address 2 (Lot 31) Admiralty Drive, Breakfast Point was inaccurate, inadequate or misleading because Admiralty Drive was not a public road or because the notice did not refer to Medora Street.']

Ratio Decidendi

The s 101 notice accurately described the land as 2 (Lot 31) Admiralty Drive, Breakfast Point and the development as a new two storey dwelling. Clause 124 did not require the notice to use a so-called proper or commonly known address, did not require the address to be on a public road, and did not require repetition of descriptions used in earlier notification documents. Because the notice complied with cl 124 and was not misleading, it had the effect that the validity of the consent could not be questioned in these proceedings, which were commenced outside the three-month period.

Court Disposition

Proceedings dismissed; the public notice had the effect that the validity of the development consent could not be questioned in the proceedings.

Orders

  • ['Proceedings no. 41322 of 2003 are dismissed.' 'The exhibits with the exception of Exhibit D may be returned.' "The Applicants are to pay the First and Third Respondents' costs as agreed or assessed in relation to these proceedings. Liberty is given to the Applicants to apply within 48 hours if they wish to raise...