Crighton Properties Pty Limited v Kiama Municipal Council [2006] NSWLEC 297

Crighton Properties Pty Limited v Kiama Municipal Council [2006] NSWLEC 297

Clauses 27(1) and 74(1) of SEPP (Seniors Living) do not require that arrangements for the relevant services have been made before consent may be granted; they require that the consent authority be satisfied that the services will be provided. Therefore, cl 2(1)(h) of Pt 1 of Sch 1 of the Regulation was not triggered, no supporting documentary evidence of 'arrangements' was required, and the Council's rejection of the application under cl 51(1)(b) was ultra vires and void.

Jurisdiction
Australia
Judgment Date
22 May 2006
Procedural Posture
Judicial Review / Ex Tempore Judgment Following Hearing
Outcome
Application allowed; Council's rejection of the application declared void; costs awarded to the applicant.
Legal Topics
['development Applications' 'environmental Planning and Assessment' 'judicial Review' 'seniors Living Development' 'ultra Vires Acts']
['administrative Law' 'planning and Environment Law'] ['development Applications' 'environmental Planning and Assessment' 'judicial Review' 'seniors Living Development' 'ultra Vires Acts']

Case Brief

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Procedural Posture

Judicial Review / Ex Tempore Judgment Following Hearing

Legal Issues

  1. 1 ['Whether the Council was entitled to reject the development application under cl 51(1)(b) of the Environmental Planning and Assessment Regulation 2000 on the basis that it was not accompanied by documents specified in cl 2(1)(h) of Pt 1 of Sch 1 of the Regulation as required by cl 50(1).' 'Whether cll 27(1) and 74(1) of State Environmental Planning Policy (Seniors Living) 2004 constitute an environmental planning instrument requiring arrangements for any matter to have been made before development consent can be granted.']

Ratio Decidendi

Clauses 27(1) and 74(1) of SEPP (Seniors Living) do not require that arrangements for the relevant services have been made before consent may be granted; they require that the consent authority be satisfied that the services will be provided. Therefore, cl 2(1)(h) of Pt 1 of Sch 1 of the Regulation was not triggered, no supporting documentary evidence of 'arrangements' was required, and the Council's rejection of the application under cl 51(1)(b) was ultra vires and void.

Court Disposition

Application allowed; Council's rejection of the application declared void; costs awarded to the applicant.

Orders

  • ["Declaration that the Council's determination of 19 December 2005 to reject development application number 10.2005.418.1 is void and of no effect." 'Declaration that development application number 10.2005.418.1 lodged on 12 December 2005 was validly made within the meaning of the Environmental Planning and...