Ferrier Hodgson v Lake Macquarie City Council [2018] NSWLEC 1585

Ferrier Hodgson v Lake Macquarie City Council [2018] NSWLEC 1585

Because cl 22 of State Environmental Planning Policy No 55—Remediation of Land applied to the site and the development application, and because the Planning Secretary certification required by cl 22(3) had not been provided with no indication it would be provided within any known period, the Court had no present...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
13 November 2018
Procedural Posture
Class 1 Appeal From Deemed Refusal of Development Application Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 / Decision Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979, With Parties Agreeing to Disposal on the Basis of What Occurred at Conciliation Under S 34(4)(b)(ii)
Outcome
Appeal dismissed; development application refused; Exhibit 1 returned; agreement noted that the applicant pay the respondent's costs of $12,000.
Legal Topics
['development Consent' 'subdivision' 'remediation of Land' 'contaminated Land' 'planning Secretary Certification' 'conciliation']
['planning and Environment' 'land and Environment Court Proceedings'] ['development Consent' 'subdivision' 'remediation of Land' 'contaminated Land' 'planning Secretary Certification' 'conciliation']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal From Deemed Refusal of Development Application Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 / Decision Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979, With Parties Agreeing to Disposal on the Basis of What Occurred at Conciliation Under S 34(4)(b)(ii)

Legal Issues

  1. 1 ['Whether cl 22 of State Environmental Planning Policy No 55—Remediation of Land applied to the development application and site.' 'Whether the Court, exercising the functions of the consent authority, had power to grant development consent without certification from the Planning Secretary.' 'Whether the appeal should be dismissed and the development application refused by consent.']

Ratio Decidendi

Because cl 22 of State Environmental Planning Policy No 55—Remediation of Land applied to the site and the development application, and because the Planning Secretary certification required by cl 22(3) had not been provided with no indication it would be provided within any known period, the Court had no present power to grant development consent. The appeal was therefore dismissed and the development application refused.

Court Disposition

Appeal dismissed; development application refused; Exhibit 1 returned; agreement noted that the applicant pay the respondent's costs of $12,000.

Orders

  • ['The appeal is dismissed.' 'The development application DA/716/2016 seeking the amalgamation of Lot 599 DP 1228699 (2A Main Road, Boolaroo NSW) and Lot 1 DP 225720 (1A First Street, Boolaroo) and the staged 13 lot subdivision of the amalgamated site, is refused.' 'Exhibit 1 is returned.' "The Court notes the...