Carriage v Stockland Development Pty Limited (No 4) [2004] NSWLEC 553

Carriage v Stockland Development Pty Limited (No 4) [2004] NSWLEC 553

The applicant had a legitimate expectation that he would be consulted about s 90 consents affecting Sandon Point. The Director-General only notified him of a proposed extension of the original consents, but instead issued fresh consents for materially different activities and with materially different conditions, including omission of the Keeping Place condition. Because the applicant was not given an opportunity to address the real proposal before the Director-General, procedural fairness was denied and the fresh consents were invalid. The claims against Stockland failed because there was no evidence that Aboriginal objects were uncovered or destroyed on lot 224 or that Stockland...

Jurisdiction
Australia
Judgment Date
30 September 2004
Procedural Posture
Administrative Law and Environmental Planning Class 4 Proceedings Challenging Consents Under S 90 of the National Parks and Wildlife Act 1974 and Alleging Breach of Development Consent / Judgment No 4 After Hearing; Appropriate Relief and Costs to Be Determined Later
Outcome
Applicant's procedural fairness challenge to the fresh consents upheld; fresh consents held invalid. Applicant's claims against Stockland not sustained. Appropriate relief and costs reserved for later determination.
Legal Topics
['validity of Administrative Consent' 'procedural Fairness' 'legitimate Expectation' 'national Parks and Wildlife Act S 90 Consents' 'development Consent Compliance' 'aboriginal Objects']
['administrative Law' 'environmental Planning Law' 'aboriginal Cultural Heritage Law'] ['validity of Administrative Consent' 'procedural Fairness' 'legitimate Expectation' 'national Parks and Wildlife Act S 90 Consents' 'development Consent Compliance' 'aboriginal Objects']

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Procedural Posture

Administrative Law and Environmental Planning Class 4 Proceedings Challenging Consents Under S 90 of the National Parks and Wildlife Act 1974 and Alleging Breach of Development Consent / Judgment No 4 After Hearing; Appropriate Relief and Costs to Be Determined Later

Legal Issues

  1. 1 ['Whether the three fresh consents issued on 15 March 2004 under s 90 of the National Parks and Wildlife Act 1974 were invalid for denial of procedural fairness.' 'Whether the Director-General failed to take into account relevant considerations when granting the fresh consents.' 'Whether Stockland carried out excavation on lot 224 contrary to s 76A(1)(b) of the Environmental Planning and Assessment Act 1979 or in breach of the development consent.' 'Whether Stockland damaged Aboriginal objects when no s 90 consent was extant.']

Ratio Decidendi

The applicant had a legitimate expectation that he would be consulted about s 90 consents affecting Sandon Point. The Director-General only notified him of a proposed extension of the original consents, but instead issued fresh consents for materially different activities and with materially different conditions, including omission of the Keeping Place condition. Because the applicant was not given an opportunity to address the real proposal before the Director-General, procedural fairness was denied and the fresh consents were invalid. The claims against Stockland failed because there was no evidence that Aboriginal objects were uncovered or destroyed on lot 224 or that Stockland...

Court Disposition

Applicant's procedural fairness challenge to the fresh consents upheld; fresh consents held invalid. Applicant's claims against Stockland not sustained. Appropriate relief and costs reserved for later determination.

Orders

  • ['Proceedings directed to be listed before the Registrar on 13 October 2004 for allocation of hearing dates to determine appropriate relief and costs.']