HAWKESBURY CITY COUNCIL & ANOR v SAMMUT [2002] NSWCA 18

HAWKESBURY CITY COUNCIL & ANOR v SAMMUT [2002] NSWCA 18

The consent authorised repair of farm machinery, which was a manufacturing process and therefore an "industry" under the incorporated Model Provisions. Because "industries" were prohibited in the relevant rural zone, the Council had no power to grant the consent, notwithstanding that the use might also be described as a "rural industry". Amendment No 4 to SEPP No 30 was not expressed with sufficient clarity to operate retrospectively or as a declaratory enactment validating a consent void when granted, and the Council was not estopped from asserting invalidity. The consent was therefore void.

Jurisdiction
Australia
Judgment Date
19 February 2002
Procedural Posture
Appeal From Land and Environment Court Class 4 Proceedings Seeking Declarations as to Invalidity of Development Consent and Injunctive Relief / Court of Appeal Judgment Allowing the Appeal
Outcome
Appeal allowed; consent declared void and proceedings remitted to the Land and Environment Court.
Legal Topics
['development Consent' 'prohibited Use' 'rural Industry' 'industry' 'ultra Vires Consent' 'retrospective Operation of Planning Instruments' 'declaratory Enactment' 'estoppel Against Council' 'procedural Fairness']
['environmental Law' 'planning Law' 'administrative Law'] ['development Consent' 'prohibited Use' 'rural Industry' 'industry' 'ultra Vires Consent' 'retrospective Operation of Planning Instruments' 'declaratory Enactment' 'estoppel Against Council' 'procedural Fairness']

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Procedural Posture

Appeal From Land and Environment Court Class 4 Proceedings Seeking Declarations as to Invalidity of Development Consent and Injunctive Relief / Court of Appeal Judgment Allowing the Appeal

Legal Issues

  1. 1 ['Whether the tractor repair business authorised by the consent was an "industry" prohibited under the Hawkesbury City Council Local Environmental Plan 1989.' 'Whether a use that could be categorised as "rural industry" was nevertheless prohibited if it also fell within "industry".' 'Whether State Environment Planning Policy No 30 – Intensive Agriculture (Amendment No 4) had retrospective effect sufficient to validate a consent that was void when granted.' 'Whether the Council was estopped from challenging the validity of its own consent.' 'Whether it was necessary to determine the alleged denial of procedural fairness to Mr Hagar.']

Ratio Decidendi

The consent authorised repair of farm machinery, which was a manufacturing process and therefore an "industry" under the incorporated Model Provisions. Because "industries" were prohibited in the relevant rural zone, the Council had no power to grant the consent, notwithstanding that the use might also be described as a "rural industry". Amendment No 4 to SEPP No 30 was not expressed with sufficient clarity to operate retrospectively or as a declaratory enactment validating a consent void when granted, and the Council was not estopped from asserting invalidity. The consent was therefore void.

Court Disposition

Appeal allowed; consent declared void and proceedings remitted to the Land and Environment Court.

Orders

  • ['The order made by Cowdroy J in Hawkesbury City Council v Sammut [2000] NSWLEC 270 on the point of law is set aside.' 'In lieu declare that the use authorised by the Consent granted to the respondent on 15 January 1999 is prohibited and that in consequence the Consent is void.' 'The order made by Talbot J in...