Hastings Point Progress Association Inc v Tweed Shire Council and Anor; Hastings Point Progress Association Inc v Tweed Shire Council and Ors [2008] NSWLEC 219

Hastings Point Progress Association Inc v Tweed Shire Council and Anor; Hastings Point Progress Association Inc v Tweed Shire Council and Ors [2008] NSWLEC 219

Because cl 8(1)(c) of the Tweed Local Environmental Plan 2000 was a mandatory condition precedent to the grant of consent, and the failure to consider cumulative impact under that clause was not a discrete matter separable from the overall merits assessment required by s 79C of the Environmental Planning and Assessment Act 1979, it was inappropriate to suspend the consent and require reconsideration under s 25B of the Land and Environment Court Act 1979. DA 07/0022 should therefore be declared invalid.

Jurisdiction
Australia
Judgment Date
31 July 2008
Procedural Posture
Class 4 Judicial Review Proceedings Concerning Development Consent / Written Submissions After Substantive Judgment on Whether to Make an Order Under S 25 B of the Land and Environment Court Act 1979 or Declare the Consent Invalid
Outcome
Development consent DA 07/0022 was declared void and of no effect; the application in matter no 40785 of 2007 was dismissed; costs were reserved.
Legal Topics
['development Consent' 'judicial Review' 'mandatory Relevant Considerations' 'cumulative Impact' 'suspension of Consent Under S 25 B' 'invalidity of Development Consent']
['environmental Planning Law' 'administrative Law' 'land and Environment Court Procedure'] ['development Consent' 'judicial Review' 'mandatory Relevant Considerations' 'cumulative Impact' 'suspension of Consent Under S 25 B' 'invalidity of Development Consent']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings Concerning Development Consent / Written Submissions After Substantive Judgment on Whether to Make an Order Under S 25 B of the Land and Environment Court Act 1979 or Declare the Consent Invalid

Legal Issues

  1. 1 ['Whether the Court should make an order under s 25B of the Land and Environment Court Act 1979 suspending the operation of development consent DA 07/0022 and specifying terms for compliance instead of declaring the consent invalid.' "Whether the Council's failure to consider cl 8(1)(c) of the Tweed Local Environmental Plan 2000 was a substantive failure going to the merits assessment required before granting development consent."]

Ratio Decidendi

Because cl 8(1)(c) of the Tweed Local Environmental Plan 2000 was a mandatory condition precedent to the grant of consent, and the failure to consider cumulative impact under that clause was not a discrete matter separable from the overall merits assessment required by s 79C of the Environmental Planning and Assessment Act 1979, it was inappropriate to suspend the consent and require reconsideration under s 25B of the Land and Environment Court Act 1979. DA 07/0022 should therefore be declared invalid.

Court Disposition

Development consent DA 07/0022 was declared void and of no effect; the application in matter no 40785 of 2007 was dismissed; costs were reserved.

Orders

  • ['In matter no 40967 of 2007: A declaration that development consent DA 07/0022 in respect of development at lot 9 DP 14141, 21 Tweed Coast Road, Hastings Point, granted by the First Respondent on 19 June 2007 is void and of no effect.' 'In matter no 40967 of 2007: Costs are reserved.' 'In matter no 40785 of 2007:...