Calardu Warrawong (Home Starters) Pty Limited v Wollongong City Council and Others [2008] NSWLEC 265

Calardu Warrawong (Home Starters) Pty Limited v Wollongong City Council and Others [2008] NSWLEC 265

The invalidity of the consent relates only to the part approving the use as a pizza shop, which is a severable and minor component. The Council's error in calculating carparking was not jurisdictional and did not render the whole consent invalid. Appropriate relief is to suspend consent only to the invalid component pending further application, not to set aside the entire consent.

Jurisdiction
Australia
Judgment Date
16 September 2008
Procedural Posture
Judicial Review/application for Relief Against Development Consent / Judgment After Hearing
Outcome
Part of development consent suspended with terms for validation
Legal Topics
['development Consent' 'validity of Consent' 'carparking Requirements' 'land Use in Tourism Zone' 'section 25 B Order' 'existing Use Rights']
['planning and Environment Law'] ['development Consent' 'validity of Consent' 'carparking Requirements' 'land Use in Tourism Zone' 'section 25 B Order' 'existing Use Rights']

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Procedural Posture

Judicial Review/application for Relief Against Development Consent / Judgment After Hearing

Legal Issues

  1. 1 ['Validity of development consent for use including a pizza shop in a tourism zone' 'Correct calculation and adequacy of carparking requirements' 'Whether consent should be suspended or set aside under s.25B of the Land and Environment Court Act 1979']

Ratio Decidendi

The invalidity of the consent relates only to the part approving the use as a pizza shop, which is a severable and minor component. The Council's error in calculating carparking was not jurisdictional and did not render the whole consent invalid. Appropriate relief is to suspend consent only to the invalid component pending further application, not to set aside the entire consent.

Court Disposition

Part of development consent suspended with terms for validation

Orders

  • ['Until further order, the terms of that part of the development consent to DA 2007/1018 as relates to the use of part of the proposed building for the purposes of a pizza shop is suspended.' 'Compliance with the following will validate the whole of the Development Consent: the First Respondent imposes a condition...