Sader v Elgammal (No 2) [2024] NSWLEC 4

Sader v Elgammal (No 2) [2024] NSWLEC 4

The CDC authorised works wholly on Crown land owned by the State of New South Wales, but the application was not made by that owner and the owner's consent required by s 4.26(2)(b) of the Environmental Planning and Assessment Act 1979 was not obtained. The certifier therefore had no statutory power to issue the CDC. The prerequisites in s 4.31 were satisfied, the applicants had a real interest as adjoining landowners, the first respondent was a proper contradictor despite consenting to relief, and the declaration and injunction had practical utility because they confirmed the CDC conferred no rights and works in reliance on it were unlawful.

Jurisdiction
Australia
Judgment Date
02 February 2024
Procedural Posture
Class 4 Judicial Review Proceedings / Principal Ex Tempore Judgment on Summons Seeking Declaration of Invalidity of a Complying Development Certificate and Injunctive Relief
Outcome
Declaration of invalidity and injunctive relief granted; consequential order for exhibits to be returned.
Legal Topics
['validity of Complying Development Certificate' "landowner's Consent" 'declaratory Relief' 'proper Contradictor' 'injunctive Relief' 'boatshed Works on Crown Land']
['planning and Environment Law' 'administrative Law' 'crown Land'] ['validity of Complying Development Certificate' "landowner's Consent" 'declaratory Relief' 'proper Contradictor' 'injunctive Relief' 'boatshed Works on Crown Land']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings / Principal Ex Tempore Judgment on Summons Seeking Declaration of Invalidity of a Complying Development Certificate and Injunctive Relief

Legal Issues

  1. 1 ['Whether complying development certificate 8058994 was invalid because the consent of the owner of the Crown land was not obtained before it was issued.' 'Whether the Court should grant declaratory relief under s 4.31 of the Environmental Planning and Assessment Act 1979 in circumstances where the first respondent consented to the declaration.' 'Whether an injunction should restrain works in purported reliance on the complying development certificate.']

Ratio Decidendi

The CDC authorised works wholly on Crown land owned by the State of New South Wales, but the application was not made by that owner and the owner's consent required by s 4.26(2)(b) of the Environmental Planning and Assessment Act 1979 was not obtained. The certifier therefore had no statutory power to issue the CDC. The prerequisites in s 4.31 were satisfied, the applicants had a real interest as adjoining landowners, the first respondent was a proper contradictor despite consenting to relief, and the declaration and injunction had practical utility because they confirmed the CDC conferred no rights and works in reliance on it were unlawful.

Court Disposition

Declaration of invalidity and injunctive relief granted; consequential order for exhibits to be returned.

Orders

  • ['A declaration pursuant to s 4.31 of the Environmental Planning and Assessment Act 1979 that complying development certificate 8058994 issued by the second respondent on 5 September 2022, for works described as "maintenance and improvement works to boatshed" is invalid, is of no effect, and is set aside.' 'An order...