Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245

Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245

The development consent was invalid because the application included works on Al Maha’s land for which owner's consent had not been obtained, a jurisdictional prerequisite. Further, the Commissioner failed to form necessary conclusions under the Canada Bay LEP cl 4.6 before granting consent that contravened a development standard. The purported use of the slip rule to remove the offending approval was not authorised as it was substantive, not clerical. Accordingly, the consent and amendments were set aside.

Parties
Applicant: Al Maha Pty Ltd; First Respondent: Huajun Investments Pty Ltd; Second Respondent: Land and Environment Court; Third Respondent: City of Canada Bay Council
Jurisdiction
Australia
Judgment Date
26 October 2018
Procedural Posture
Judicial Review / Civil Appeal / Appeal – Judgment of Court of Appeal
Outcome
Appeal allowed, orders made as sought by applicant
Legal Topics
Development Consent, Owner's Consent, Judicial Review, Slip Rule, Jurisdictional Error
Planning and Environment Law Civil Procedure Development Consent Owner's Consent Judicial Review Slip Rule Jurisdictional Error

Case Brief

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Parties

Al Maha Pty Ltd

Applicant

Huajun Investments Pty Ltd

First Respondent

Land and Environment Court

Second Respondent

City of Canada Bay Council

Third Respondent

Procedural Posture

Judicial Review / Civil Appeal / Appeal – Judgment of Court of Appeal

Legal Issues

  1. 1 Whether development consent was invalid for lack of owner's consent to application for development on neighbouring land
  2. 2 Whether Commissioner failed to form requisite opinions of satisfaction under LEP cl 4.6 justifying contravention of development standard
  3. 3 Whether development consent was legally unreasonable or uncertain

Ratio Decidendi

The development consent was invalid because the application included works on Al Maha’s land for which owner's consent had not been obtained, a jurisdictional prerequisite. Further, the Commissioner failed to form necessary conclusions under the Canada Bay LEP cl 4.6 before granting consent that contravened a development standard. The purported use of the slip rule to remove the offending approval was not authorised as it was substantive, not clerical. Accordingly, the consent and amendments were set aside.

Court Disposition

Appeal allowed, orders made as sought by applicant

Orders

  • Quash the decision made in the Land and Environment Court on 26 February 2018 granting consent to development application N0429/16 (as amended 7 June 2018).
  • Declare that the development consent is invalid.