CODLEA PTY LTD v BYRON SHIRE COUNCIL [1999] NSWCA 399

CODLEA PTY LTD v BYRON SHIRE COUNCIL [1999] NSWCA 399

The power of the Land and Environment Court under s 39(2) of the Land and Environment Court Act 1979 does not extend to making the 'prior adequate arrangements' required by cl 45 of the Local Environmental Plan; that function is exclusively for the Council, and as no such prior arrangements existed, development consent could not be granted on appeal.

Parties
Appellant: Codlea Pty Ltd; Respondent: Byron Shire Council
Jurisdiction
Australia
Judgment Date
28 October 1999
Procedural Posture
Appeal / Application for Leave to Appeal and Appeal From Decision of Land & Environment Court
Outcome
Leave to appeal granted; appeal dismissed with costs.
Legal Topics
Development Consent, Judicial Function on Appeal, Interpretation of Statutory Clauses, Satisfaction of Conditions Precedent in Planning Law
Planning and Environment Law Administrative Law Development Consent Judicial Function on Appeal Interpretation of Statutory Clauses Satisfaction of Conditions Precedent in Planning Law

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Parties

Codlea Pty Ltd

Appellant

Byron Shire Council

Respondent

Procedural Posture

Appeal / Application for Leave to Appeal and Appeal From Decision of Land & Environment Court

Legal Issues

  1. 1 Whether a question of law arose on the Commissioner's decision under s 56A of the Land and Environment Court Act 1979
  2. 2 Whether the Commissioner could, under s 39(2) of the Land and Environment Court Act, make or substitute the Council's function with respect to adequate sewerage arrangements under cl 45 of the Local Environmental Plan

Ratio Decidendi

The power of the Land and Environment Court under s 39(2) of the Land and Environment Court Act 1979 does not extend to making the 'prior adequate arrangements' required by cl 45 of the Local Environmental Plan; that function is exclusively for the Council, and as no such prior arrangements existed, development consent could not be granted on appeal.

Court Disposition

Leave to appeal granted; appeal dismissed with costs.

Orders

  • Leave to appeal granted on the undertaking of the appellant to pay the filing fee.
  • Appeal dismissed with costs.