Carriage v Stockland Development Pty Ltd & Ors [No 7] [2004] NSWLEC 148

Carriage v Stockland Development Pty Ltd & Ors [No 7] [2004] NSWLEC 148

Given the prior finding that the construction certificates should not have issued in relation to fill on part of Lot 235, and exercising the wide discretion under s 124 of the Environmental Planning and Assessment Act 1979, the appropriate relief was to declare Construction Certificates 214/02 and 215/02 invalid only to the extent that they referred to work relating to the part of Lot 235 DP1048602 zoned residential 2(b) under the Wollongong Local Environmental Plan 1990. It followed that the First Respondent had carried out development requiring development consent on that part of Lot 235 without first obtaining valid development consent, in breach of s 76A(1) of the Environmental...

Jurisdiction
Australia
Judgment Date
16 December 2004
Procedural Posture
Judicial Review / Further Hearing on Appropriate Orders After Findings Concerning Validity of Construction Certificates
Outcome
Declarations made; costs reserved; remediation and Ground 3 issues left for further determination.
Legal Topics
['validity of Construction Certificates' 'development Consent' 'partial Invalidity' 'remedial Discretion Under S 124 of the Environmental Planning and Assessment Act 1979' 'aboriginal Objects Permit']
['environmental Planning and Assessment' 'administrative Law' 'land and Environment'] ['validity of Construction Certificates' 'development Consent' 'partial Invalidity' 'remedial Discretion Under S 124 of the Environmental Planning and Assessment Act 1979' 'aboriginal Objects Permit']

Case Brief

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Procedural Posture

Judicial Review / Further Hearing on Appropriate Orders After Findings Concerning Validity of Construction Certificates

Legal Issues

  1. 1 ['Whether Construction Certificates 214/02 and 215/02 should be declared invalid in whole or only in part after the Court found it was not reasonably open to the certifier to issue them in relation to fill placed on part of Lot 235.' 'Whether the First Respondent carried out development requiring development consent on the residential 2(b) part of Lot 235 without first obtaining a valid development consent.' 'Whether restraining or remediation orders should be made at this stage.' 'Whether an order should be made restraining activities likely to move or damage Aboriginal objects on Lot 235.']

Ratio Decidendi

Given the prior finding that the construction certificates should not have issued in relation to fill on part of Lot 235, and exercising the wide discretion under s 124 of the Environmental Planning and Assessment Act 1979, the appropriate relief was to declare Construction Certificates 214/02 and 215/02 invalid only to the extent that they referred to work relating to the part of Lot 235 DP1048602 zoned residential 2(b) under the Wollongong Local Environmental Plan 1990. It followed that the First Respondent had carried out development requiring development consent on that part of Lot 235 without first obtaining valid development consent, in breach of s 76A(1) of the Environmental...

Court Disposition

Declarations made; costs reserved; remediation and Ground 3 issues left for further determination.

Orders

  • ['Construction Certificates 214/02 and 215/02 issued by the Fifth Respondent to the First Respondent on or about 8 February 2002 are, to the extent that they refer to work relating to that part of Lot 235 DP1048602 zoned residential 2(b) under the Wollongong Local Environmental Plan 1990, invalid.' 'The First...