Becton Corporation Pty Limited v Minister for Infrastructure, Planning and Natural Resources & Anor [2005] NSWLEC 197

Becton Corporation Pty Limited v Minister for Infrastructure, Planning and Natural Resources & Anor [2005] NSWLEC 197

The Council's strike-out application failed because the absence of landowner consent for Lot 100 was not necessarily fatal before determination of the development application, possible avenues existed for rectification or easement relief, and it could not be said that Becton's declaratory proceedings were futile or so untenable that they could not succeed. The underlying dispute about whether the Minister or the Council was the consent authority also remained unresolved.

Jurisdiction
Australia
Judgment Date
26 April 2005
Procedural Posture
Proceedings Seeking Declarations Concerning the Consent Authority for a Development Application / Second Respondent's Notice of Motion Seeking Dismissal/strike Out Under Pt 13, R 5 of the Supreme Court Rules 1970 (nsw)
Outcome
The second respondent's notice of motion was dismissed and the costs of the notice of motion were reserved.
Legal Topics
['development Application' 'consent Authority' 'state Significant Development' "landowner's Consent" 'easements' 'strike Out Application']
['planning and Environment Law' 'practice and Procedure' 'property Law'] ['development Application' 'consent Authority' 'state Significant Development' "landowner's Consent" 'easements' 'strike Out Application']

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Procedural Posture

Proceedings Seeking Declarations Concerning the Consent Authority for a Development Application / Second Respondent's Notice of Motion Seeking Dismissal/strike Out Under Pt 13, R 5 of the Supreme Court Rules 1970 (nsw)

Legal Issues

  1. 1 ["Whether the proceedings should be dismissed because the development application included Lot 100 without the Council's landowner consent." 'Whether absence of landowner consent made the development application so incomplete or ineffective that the declaratory proceedings would be futile.' 'Whether the possibility of rectifying landowner consent or obtaining easements under s 88K of the Conveyancing Act 1919 (NSW) or s 40 of the Land and Environment Court Act 1996 (NSW) meant the proceedings were not untenable.' 'Whether the underlying dispute as to whether the Minister or the Council was the consent authority remained to be determined.']

Ratio Decidendi

The Council's strike-out application failed because the absence of landowner consent for Lot 100 was not necessarily fatal before determination of the development application, possible avenues existed for rectification or easement relief, and it could not be said that Becton's declaratory proceedings were futile or so untenable that they could not succeed. The underlying dispute about whether the Minister or the Council was the consent authority also remained unresolved.

Court Disposition

The second respondent's notice of motion was dismissed and the costs of the notice of motion were reserved.

Orders

  • ["The second respondent's notice of motion dated 29 March 2005 is dismissed." 'The costs of the notice of motion are reserved.']