Gunning Sustainable Development Association Inc v Upper Lachlan Council and Another [2005] NSWLEC 23

Gunning Sustainable Development Association Inc v Upper Lachlan Council and Another [2005] NSWLEC 23

The highway service centre was not petroleum works for the purposes of cl 27 of Schedule 3 to the Environmental Planning and Assessment Regulation 2000, and was not designated development on that basis. The development was also not integrated development requiring approval under s 116 of the Water Act 1912 because the bores already existed and there was no proposal to sink, enlarge, deepen or alter them. However, the Council failed to take into account essential matters before determining the application, particularly the absence of information about the proposed fuel storage system, geotechnical suitability and the requirements of SEPP 33, and it failed to comply with cl 31 of the...

Jurisdiction
Australia
Judgment Date
04 February 2005
Procedural Posture
Proceedings Seeking Declarations and Orders That a Deferred Commencement Development Consent for a Highway Service Centre Was Invalid and Restraining Reliance on It / Judgment on Validity Issues; Discretion and Any Application Under S 25 B of the Land and Environment Court Act 1979 Deferred for Further Evidence and Argument
Outcome
The applicant made out its case and was entitled to a declaration that the development consent granted on 19 January 2004 was invalid and of no effect, but no formal declaration or orders were made at this stage because discretion and s 25B issues were deferred for further evidence and argument.
Legal Topics
['development Consent' 'deferred Commencement Consent' 'designated Development' 'integrated Development' 'relevant Considerations' 'hazardous and Offensive Development' 'heritage Impact Assessment' 'highway Service Centre']
['planning and Environment Law' 'administrative Law' 'local Government'] ['development Consent' 'deferred Commencement Consent' 'designated Development' 'integrated Development' 'relevant Considerations' 'hazardous and Offensive Development' 'heritage Impact Assessment' 'highway Service Centre']

Case Brief

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

Proceedings Seeking Declarations and Orders That a Deferred Commencement Development Consent for a Highway Service Centre Was Invalid and Restraining Reliance on It / Judgment on Validity Issues; Discretion and Any Application Under S 25 B of the Land and Environment Court Act 1979 Deferred for Further Evidence and Argument

Legal Issues

  1. 1 ['Whether the highway service centre was designated development as petroleum works requiring an Environmental Impact Statement under s 78A(8)(a) of the Environmental Planning and Assessment Act 1979 and cl 27 of Schedule 3 to the Environmental Planning and Assessment Regulation 2000.' 'Whether the consent was uncertain or lacking in finality because it did not limit the type, quantity or location of fuel storage.' 'Whether the integrated development provisions were breached in relation to approval under s 138 of the Roads Act 1993 and a licence under s 116 of the Water Act 1912.' 'Whether the Council failed to consider relevant matters including fuel storage impacts, geotechnical suitability, SEPP 33 requirements, bore water supply, lighting, economic impacts, noise, public submissions, heritage significance, stormwater and grey water management, and potential pollution.' 'Whether deferred commencement conditions were used impermissibly as an in-principle consent by leaving essential matters for later consideration.' 'Whether the Council failed to comply with cl 31 of the Gunning Local Environmental Plan 1997 in relation to the heritage significance of 22 Hume Street, Gunning, the Do Duck Inn.']

Ratio Decidendi

The highway service centre was not petroleum works for the purposes of cl 27 of Schedule 3 to the Environmental Planning and Assessment Regulation 2000, and was not designated development on that basis. The development was also not integrated development requiring approval under s 116 of the Water Act 1912 because the bores already existed and there was no proposal to sink, enlarge, deepen or alter them. However, the Council failed to take into account essential matters before determining the application, particularly the absence of information about the proposed fuel storage system, geotechnical suitability and the requirements of SEPP 33, and it failed to comply with cl 31 of the...

Court Disposition

The applicant made out its case and was entitled to a declaration that the development consent granted on 19 January 2004 was invalid and of no effect, but no formal declaration or orders were made at this stage because discretion and s 25B issues were deferred for further evidence and argument.

Orders

  • []