Forsyth and Anor v Wilesmith and Ors [2008] NSWLEC 259

Forsyth and Anor v Wilesmith and Ors [2008] NSWLEC 259

There was no legal error by the Council in not expressly considering the flooding impact of the acoustic wall because the Council properly addressed whether the land was flood liable and made the judgment, based on available evidence, that it was not. It is for the Council, not the Court, to determine what matters are relevant under s 79C. Therefore, there was no failure to consider a mandatory relevant consideration, and the challenge fails.

Parties
Applicant: John Alfred Forsyth; Applicant: Roslyn Kim Fitness; First Respondent: Paul Wilesmith; First Respondent: Deborah Sharon Wilesmith; Second Respondent: Wyong Shire Council
Jurisdiction
Australia
Judgment Date
10 September 2008
Procedural Posture
Judicial Review / Judgment at First Instance
Outcome
Application dismissed
Legal Topics
Judicial Review of Development Consent, Relevant Considerations in Development Assessment, Flooding Impacts in Planning Approvals
Administrative Law Planning Law Judicial Review of Development Consent Relevant Considerations in Development Assessment Flooding Impacts in Planning Approvals

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Parties

John Alfred Forsyth

Applicant

Roslyn Kim Fitness

Applicant

Paul Wilesmith

First Respondent

Deborah Sharon Wilesmith

First Respondent

Wyong Shire Council

Second Respondent

Procedural Posture

Judicial Review / Judgment at First Instance

Legal Issues

  1. 1 Whether Council failed to take into account a mandatory relevant consideration (flooding impacts) when granting development consent.

Ratio Decidendi

There was no legal error by the Council in not expressly considering the flooding impact of the acoustic wall because the Council properly addressed whether the land was flood liable and made the judgment, based on available evidence, that it was not. It is for the Council, not the Court, to determine what matters are relevant under s 79C. Therefore, there was no failure to consider a mandatory relevant consideration, and the challenge fails.

Court Disposition

Application dismissed

Orders

  • Class 4 application dismissed. Costs to be determined.