Northern Residential Pty Limited v Newcastle City Council [2009] NSWCA 141

Northern Residential Pty Limited v Newcastle City Council [2009] NSWCA 141

The notification of inspections under s 81A(4)(b1)(ii) does not, as a matter of law, constitute a requirement for inspections by the principal certifying authority under s 109E(3)(d). There was no breach of s 109E, as the inspections performed and notified were required by the development consent, not by the principal certifying authority under the statute. Even if a breach of s 109E had occurred, a breach would not of itself result in invalidity of the subdivision certificates under the legislative scheme, as the provisions of s 109E are not conditions of validity like those under s 109J.

Parties
First Appellant: Northern Residential Pty Limited; Second Appellant: Terry G Gibson; Third Appellant: TG Gibson Pty Limited; First Respondent: Newcastle City Council; Second Respondent: Registrar General of New South Wales
Jurisdiction
Australia
Judgment Date
05 June 2009
Procedural Posture
Appeal / Judgment on Appeal From Land & Environment Court
Outcome
Appeal allowed; orders below set aside; proceedings dismissed with costs.
Legal Topics
Subdivision Certificates, Inspections for Subdivision Works, Development Consent Conditions, Principal Certifying Authority Powers, Validity of Certificates
Local Government Law Planning and Development Law Subdivision Certificates Inspections for Subdivision Works Development Consent Conditions Principal Certifying Authority Powers Validity of Certificates

Case Brief

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Parties

Northern Residential Pty Limited

First Appellant

Terry G Gibson

Second Appellant

TG Gibson Pty Limited

Third Appellant

Newcastle City Council

First Respondent

Registrar General of New South Wales

Second Respondent

Procedural Posture

Appeal / Judgment on Appeal From Land & Environment Court

Legal Issues

  1. 1 Whether inspections required by principal certifying authority under s 109E(3) of the Environmental Planning and Assessment Act 1979 were complied with for the issue of subdivision certificates
  2. 2 Whether a breach of s 109E(3) results in the invalidity of subdivision certificates
  3. 3 Whether inspections may be performed by persons other than certifying authorities under the development consent and statutory scheme

Ratio Decidendi

The notification of inspections under s 81A(4)(b1)(ii) does not, as a matter of law, constitute a requirement for inspections by the principal certifying authority under s 109E(3)(d). There was no breach of s 109E, as the inspections performed and notified were required by the development consent, not by the principal certifying authority under the statute. Even if a breach of s 109E had occurred, a breach would not of itself result in invalidity of the subdivision certificates under the legislative scheme, as the provisions of s 109E are not conditions of validity like those under s 109J.

Court Disposition

Appeal allowed; orders below set aside; proceedings dismissed with costs.

Orders

  • Orders below set aside, and in lieu thereof proceedings dismissed with costs.
  • Newcastle City Council to pay the appellants' costs of the appeal.