Evans and Anor. v Maclean Shire Council and Anor. [2004] NSWLEC 512

Evans and Anor. v Maclean Shire Council and Anor. [2004] NSWLEC 512

The approved development was properly characterised as for the purpose of a 'tourist facility' within the LEP and SEPP 71 and thus fell within the declaration of State significant development. The development was prohibited but was nonetheless permitted to be carried out with development consent pursuant to existing use rights under the EP&A Act and Regulations, the provisions of which are deemed incorporated into the LEP. Accordingly, it satisfied both elements of 'State significant development' under s 76A(7)(a), meaning that only the Minister, not the Council, was the relevant consent authority; thus Council's development consent was a nullity.

Jurisdiction
Australia
Judgment Date
09 September 2004
Procedural Posture
Class 4 Application / Judgment After Hearing
Outcome
Applicant succeeded; Council's development consent declared null and void.
Legal Topics
['development Consent' 'state Significant Development' 'existing Use Rights' 'consent Authority' 'environmental Planning Instruments' 'jurisdictional Error']
['planning and Environment Law'] ['development Consent' 'state Significant Development' 'existing Use Rights' 'consent Authority' 'environmental Planning Instruments' 'jurisdictional Error']

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Procedural Posture

Class 4 Application / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the development consent granted by Council was void for want of jurisdiction because the approved development was 'State significant development' for which the Minister was the consent authority under SEPP 71 and s 76A(7) of the EP&A Act." "Whether the approved development was properly characterised as development for a 'tourist facility' under SEPP 71 and the Local Environmental Plan, and thus State significant development." "Whether development consent granted under existing use entitlements constitutes 'development that may be carried out with development consent' for the purpose of classifying State significant development."]

Ratio Decidendi

The approved development was properly characterised as for the purpose of a 'tourist facility' within the LEP and SEPP 71 and thus fell within the declaration of State significant development. The development was prohibited but was nonetheless permitted to be carried out with development consent pursuant to existing use rights under the EP&A Act and Regulations, the provisions of which are deemed incorporated into the LEP. Accordingly, it satisfied both elements of 'State significant development' under s 76A(7)(a), meaning that only the Minister, not the Council, was the relevant consent authority; thus Council's development consent was a nullity.

Court Disposition

Applicant succeeded; Council's development consent declared null and void.

Orders

  • ["Declare to be null and void the development consent No 2003/0112 purported to be granted by the Maclean Shire Council on 21 July 2003 for the expansion of an existing caravan park on property known as 286 O'Keefe's Lane, Palmers Island." 'Order the second Respondent, by itself, its agents and servants, be...