King, Markwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505

King, Markwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505

The s 94 contribution conditions were not authorised by the applicable contributions plan and were invalid. The Council’s modification of the development consents imposing extensive roadwork conditions, without compliance with statutory preconditions (including lack of notification and failure to form relevant state of mind about environmental impact and 'substantially the same development'), was also invalid. These modifications and the invalid conditions were severable from the otherwise valid development consents. Relief was not refused in the exercise of discretion, despite some applicants acting on the consents, as Council’s overreach detrimentally affected them and efforts at...

Parties
Applicant: Christina King; Applicant: Jeffrey Markwick; Applicant: Faye Markwick; Applicant: Fred Taylor; Applicant: Margaret Taylor; Respondent: Bathurst Regional Council
Jurisdiction
Australia
Judgment Date
07 September 2006
Procedural Posture
Judicial Review and Statutory Appeal / Final Judgment After Hearing
Outcome
Applicants succeed; relevant conditions and modifications declared invalid and severed; appeals against s 121B orders dismissed as orders invalid.
Legal Topics
Judicial Review of Statutory Powers, Modification and Validity of Development Consents, Section 94 Contributions, Severance of Invalid Conditions, Procedural Fairness
Administrative Law Planning and Environment Law Judicial Review of Statutory Powers Modification and Validity of Development Consents Section 94 Contributions Severance of Invalid Conditions Procedural Fairness

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Parties

Christina King

Applicant

Jeffrey Markwick

Applicant

Faye Markwick

Applicant

Fred Taylor

Applicant

Margaret Taylor

Applicant

Bathurst Regional Council

Respondent

Procedural Posture

Judicial Review and Statutory Appeal / Final Judgment After Hearing

Legal Issues

  1. 1 Were the section 94 contribution conditions imposed on development consents authorised by a valid contributions plan?
  2. 2 Were the conditions purporting to require roadworks validly imposed under s 96 of the EPA Act?
  3. 3 Were the Council’s modification approvals and subsequent orders under s 121B of the EPA Act valid?

Ratio Decidendi

The s 94 contribution conditions were not authorised by the applicable contributions plan and were invalid. The Council’s modification of the development consents imposing extensive roadwork conditions, without compliance with statutory preconditions (including lack of notification and failure to form relevant state of mind about environmental impact and 'substantially the same development'), was also invalid. These modifications and the invalid conditions were severable from the otherwise valid development consents. Relief was not refused in the exercise of discretion, despite some applicants acting on the consents, as Council’s overreach detrimentally affected them and efforts at...

Court Disposition

Applicants succeed; relevant conditions and modifications declared invalid and severed; appeals against s 121B orders dismissed as orders invalid.

Orders

  • Declarations that the s 94 conditions imposed on the consents are invalid and severed.
  • Declarations that the purported modifications of 1 March 2005 and 17 June 2005 are invalid and severed.