Boral Resources (Country) Pty Ltd v Clarence Valley Council & Avard; Cemex Australia Pty Ltd v Clarence Valley Council & Avard (No 2) [2009] NSWLEC 133

Boral Resources (Country) Pty Ltd v Clarence Valley Council & Avard; Cemex Australia Pty Ltd v Clarence Valley Council & Avard (No 2) [2009] NSWLEC 133

The Court refused to make an order under s 25B of the Land and Environment Court Act 1979. The failure to form the opinion required by cl 35 of Sch 3 to the Environmental Planning and Assessment Regulation 2000 was not a merely procedural or technical defect; it was a substantive anterior step necessary to inform the nature of the assessment required under s 79C of the Environmental Planning and Assessment Act 1979. Because formation of that opinion required assessment of subjective environmental matters about which minds may differ and could lead to a different result, a s 25B order would not necessarily validate the consent. In light of that conclusion, there was no utility in making a...

Jurisdiction
Australia
Judgment Date
19 August 2009
Procedural Posture
Judicial Review Proceedings Challenging the Grant of Development Consent / Consideration Under S 25 E of the Land and Environment Court Act 1979 Whether to Make Orders Under S 25 B Instead of Declaring the Development Consent Invalid
Outcome
No order was made under s 25B; the development consent was to be declared void and of no effect; costs were left for further argument if sought.
Legal Topics
['validity of Development Consent' 'development Application Advertising Requirements' 'designated Development' 'orders of Conditional Validity Under S 25 B of the Land and Environment Court Act 1979' 'formation of Opinion Under Cl 35 of Sch 3 to the Environmental Planning and Assessment Regulation 2000']
['environmental Planning and Assessment' 'land and Environment' 'administrative Law' 'practice and Procedure'] ['validity of Development Consent' 'development Application Advertising Requirements' 'designated Development' 'orders of Conditional Validity Under S 25 B of the Land and Environment Court Act 1979' 'formation of Opinion Under Cl 35 of Sch 3 to the Environmental Planning and Assessment Regulation 2000']

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Procedural Posture

Judicial Review Proceedings Challenging the Grant of Development Consent / Consideration Under S 25 E of the Land and Environment Court Act 1979 Whether to Make Orders Under S 25 B Instead of Declaring the Development Consent Invalid

Legal Issues

  1. 1 ["Whether the Court should exercise its discretion under s 124 of the Environmental Planning and Assessment Act 1979 to grant no relief for the Council's failure to advertise the amended development application in accordance with the DCP." 'Whether there remained a development application capable of being the subject of orders under s 25B of the Land and Environment Court Act 1979.' 'Whether orders should be made under s 25B of the Land and Environment Court Act 1979 suspending the development consent and specifying terms compliance with which would validate it.' "Whether the Council's failure to form the opinion required by cl 35 of Sch 3 to the Environmental Planning and Assessment Regulation 2000 was a technical defect capable of conditional validation or a substantive defect requiring assessment to be undertaken again."]

Ratio Decidendi

The Court refused to make an order under s 25B of the Land and Environment Court Act 1979. The failure to form the opinion required by cl 35 of Sch 3 to the Environmental Planning and Assessment Regulation 2000 was not a merely procedural or technical defect; it was a substantive anterior step necessary to inform the nature of the assessment required under s 79C of the Environmental Planning and Assessment Act 1979. Because formation of that opinion required assessment of subjective environmental matters about which minds may differ and could lead to a different result, a s 25B order would not necessarily validate the consent. In light of that conclusion, there was no utility in making a...

Court Disposition

No order was made under s 25B; the development consent was to be declared void and of no effect; costs were left for further argument if sought.

Orders

  • ['Declaration that the development consent granted by the First Respondent on 5 December 2007 to Development Application No. 2007/0371 in respect of an application to rebuild a concrete batching plant structure and associated works of Lot 5 in Deposited Plan 1093910 is void and of no effect.' 'The parties should...