IGS Enterprises Pty Limited v Hornsby Shire Council & Anor [2008] NSWLEC 304

IGS Enterprises Pty Limited v Hornsby Shire Council & Anor [2008] NSWLEC 304

The licence was not owner's consent for the making of the development application because cl 49(3) required written consent by or on behalf of the Crown, the licence contained the whole agreement, and condition 44(b) expressly required prior written consent of the Minister for improvements. The Court lacked jurisdiction to decide whether refusal of that consent derogated from the licence grant. Although the Court could assess remaining merit issues, it was inappropriate to do so because the Minister had expressly refused owner's consent and the Court could not grant development consent without it.

Jurisdiction
Australia
Judgment Date
14 November 2008
Procedural Posture
Development Application Appeal Concerning Crown Land and Owner's Consent / Separate Determination of Questions in Appeal From Refusal of Development Application
Outcome
Separate questions answered; licence was not deemed owner's consent, the Court held it had no jurisdiction to determine the derogation question, and it was inappropriate to determine the remaining merit issues.
Legal Topics
['development Application' "owner's Consent" 'crown Land Licence' 'derogation From Grant' 'planning Merits' 'jurisdiction']
['planning and Environment Law' 'crown Land' 'land and Environment Court Jurisdiction'] ['development Application' "owner's Consent" 'crown Land Licence' 'derogation From Grant' 'planning Merits' 'jurisdiction']

Case Brief

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Procedural Posture

Development Application Appeal Concerning Crown Land and Owner's Consent / Separate Determination of Questions in Appeal From Refusal of Development Application

Legal Issues

  1. 1 ['Whether Licence No. 302108 issued under s 34 of the Crown Lands Act 1989 was deemed to be a statement signed by the owner consenting to the making of the development application.' 'Whether the Second Respondent was required to consent to lodgement of the development application so as not to derogate from the grant of the licence.' "Whether, absent owner's consent, the Court could determine the remaining merit contentions in the appeal." "Whether, but for the absence of owner's consent, the Court would grant development consent to the application."]

Ratio Decidendi

The licence was not owner's consent for the making of the development application because cl 49(3) required written consent by or on behalf of the Crown, the licence contained the whole agreement, and condition 44(b) expressly required prior written consent of the Minister for improvements. The Court lacked jurisdiction to decide whether refusal of that consent derogated from the licence grant. Although the Court could assess remaining merit issues, it was inappropriate to do so because the Minister had expressly refused owner's consent and the Court could not grant development consent without it.

Court Disposition

Separate questions answered; licence was not deemed owner's consent, the Court held it had no jurisdiction to determine the derogation question, and it was inappropriate to determine the remaining merit issues.

Orders

  • ['Question (a): No.' 'Question (b): The Court does not have jurisdiction to answer this question, but would otherwise be inclined to answer it no.' 'Question (c): Yes, but having regard to paragraph [17] of the judgment, it is not appropriate for the Court to determine contentions 2-22 separately.' 'Question (d):...