GPT Re Limited v Wollongong City Council [No 2] [2006] NSWLEC 401

GPT Re Limited v Wollongong City Council [No 2] [2006] NSWLEC 401

Where no valid delegation exists and thus no person with power has determined the development application, the development consent is a nullity; the Court's discretion should not be exercised to refuse relief in such a circumstance, nor should s 25B orders be granted where the defect is not remediable by further procedural steps—thus a declaration of invalidity and an injunction are the appropriate remedies.

Parties
Applicant: GPT Re Limited; First Respondent: Wollongong City Council; Second Respondent: Belmorgan Property Development Pty Limited
Jurisdiction
Australia
Judgment Date
07 July 2006
Procedural Posture
Judicial Review, Environmental/planning Challenge / Post Merits; Relief Following Judgment of Invalidity of Development Consent
Outcome
Declaration granted that the development consent is void and an injunction restraining works made; no relief under s 25B granted.
Legal Topics
Delegation of Powers Under Local Government/planning Legislation, Relief for Invalid Development Consents, Discretion to Grant or Withhold Declaratory/injunctive Relief, Orders Under Land and Environment Court Act S 25 B, Procedural/substantive Invalidity in Grant of Development Consents
Administrative Law Planning Law Environmental Law Delegation of Powers Under Local Government/planning Legislation Relief for Invalid Development Consents Discretion to Grant or Withhold Declaratory/injunctive Relief Orders Under Land and Environment Court Act S 25 B Procedural/substantive Invalidity in Grant of Development Consents

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Parties

GPT Re Limited

Applicant

Wollongong City Council

First Respondent

Belmorgan Property Development Pty Limited

Second Respondent

Procedural Posture

Judicial Review, Environmental/planning Challenge / Post Merits; Relief Following Judgment of Invalidity of Development Consent

Legal Issues

  1. 1 Whether the Court should exercise discretion to grant or refuse declaratory and injunctive relief where a development consent is found invalid due to lack of proper delegation
  2. 2 Whether the Court has the power or should exercise discretion to grant orders under s 25B of the Land and Environment Court Act 1979 in circumstances of a substantively invalid development consent

Ratio Decidendi

Where no valid delegation exists and thus no person with power has determined the development application, the development consent is a nullity; the Court's discretion should not be exercised to refuse relief in such a circumstance, nor should s 25B orders be granted where the defect is not remediable by further procedural steps—thus a declaration of invalidity and an injunction are the appropriate remedies.

Court Disposition

Declaration granted that the development consent is void and an injunction restraining works made; no relief under s 25B granted.

Orders

  • Declaration that development consent number 2004/1565 dated 1 August 2005 granted by Wollongong City Council to Belmorgan Property Development Pty Limited for the land described as 31 Crown Street, 26 and 16 Burelli Street, Wollongong is void and of no effect.
  • Second respondent (Belmorgan) restrained from carrying out any works on the premises pursuant to the said development consent.