Clark & Davis v Wollongong City Council & Others [2008] NSWLEC 110

Clark & Davis v Wollongong City Council & Others [2008] NSWLEC 110

The validity of the consent turns on whether there was procedural fairness in the Council's notification. The Council's failure to notify the applicants, who had formally advised of their purchase and specified address, was a denial of procedural fairness not protected by s.101 of the Environmental Planning and Assessment Act. Consequently, the applicants are entitled to a declaration that the consent is invalid, subject to further consideration of discretionary relief under Division 3 of Part 3 of the Land & Environment Court Act.

Jurisdiction
Australia
Judgment Date
14 March 2008
Procedural Posture
Judicial Review / First Instance Judgment
Outcome
Applicants' principal challenge upheld; entitlement to declaration of invalidity of development consent; final orders stood over.
Legal Topics
['procedural Fairness' 'development Consent' 'notification of Development Applications' 'floor Space Ratio' 'application of Privative Clauses' 'environmental Planning and Assessment Act Application' 'remedies for Invalid Development Consent']
['planning and Environment Law' 'administrative Law'] ['procedural Fairness' 'development Consent' 'notification of Development Applications' 'floor Space Ratio' 'application of Privative Clauses' 'environmental Planning and Assessment Act Application' 'remedies for Invalid Development Consent']

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Procedural Posture

Judicial Review / First Instance Judgment

Legal Issues

  1. 1 ['Whether failure by Council to notify new owners amounted to denial of procedural fairness' 'Whether development exceeded permissible floor space ratio requiring SEPP1 objection' 'Whether failure to consider relevant matters under s.79C Environmental Planning and Assessment Act renders consent invalid' 'Whether s.101 of Environmental Planning and Assessment Act bars challenge' "Whether Court should exercise discretion under Division 3 of Part 3 Land & Environment Court Act to 'save' consent"]

Ratio Decidendi

The validity of the consent turns on whether there was procedural fairness in the Council's notification. The Council's failure to notify the applicants, who had formally advised of their purchase and specified address, was a denial of procedural fairness not protected by s.101 of the Environmental Planning and Assessment Act. Consequently, the applicants are entitled to a declaration that the consent is invalid, subject to further consideration of discretionary relief under Division 3 of Part 3 of the Land & Environment Court Act.

Court Disposition

Applicants' principal challenge upheld; entitlement to declaration of invalidity of development consent; final orders stood over.

Orders

  • ['Matter stood over for future argument as to consequential relief under Division 3 of Part 3 of the Court Act.' 'Applicants prima facie entitled to costs; formal determination reserved.']