Trenwith & Ors v Sutherland Shire Council & Anor [2005] NSWLEC 143

Trenwith & Ors v Sutherland Shire Council & Anor [2005] NSWLEC 143

Development consent was null and void due to non-compliance with the Environmental Planning and Assessment Act 1979 and its Regulations, insufficient notification denied applicants procedural fairness, Council failed to give proper consideration to impacts, and substantial unlawful works were carried out without consent; Court exercised discretion to grant demolition orders subject to opportunity for parties to agree to modification.

Jurisdiction
Australia
Judgment Date
29 August 2005
Procedural Posture
Class 4 Proceedings (judicial Review) / Final Judgment
Outcome
Development consent and construction certificate declared invalid; declarations of breach; opportunity for parties to negotiate modification; demolition orders to follow if no agreement.
Legal Topics
['invalid Development Consent' 'notification Requirements' 'discretionary Orders' 'unauthorised Works' 'procedural Fairness']
['environmental Law' 'planning Law'] ['invalid Development Consent' 'notification Requirements' 'discretionary Orders' 'unauthorised Works' 'procedural Fairness']

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Procedural Posture

Class 4 Proceedings (judicial Review) / Final Judgment

Legal Issues

  1. 1 ['Whether development consent for pergola was invalidly made under Environmental Planning and Assessment Act 1979 and Regulations' 'Whether Council failed to properly notify adjoining owners' 'Whether consent authority failed to consider relevant matters under s 79C' 'Whether works were carried out without development consent and in breach of Act' 'Whether Court should exercise discretion to order demolition']

Ratio Decidendi

Development consent was null and void due to non-compliance with the Environmental Planning and Assessment Act 1979 and its Regulations, insufficient notification denied applicants procedural fairness, Council failed to give proper consideration to impacts, and substantial unlawful works were carried out without consent; Court exercised discretion to grant demolition orders subject to opportunity for parties to agree to modification.

Court Disposition

Development consent and construction certificate declared invalid; declarations of breach; opportunity for parties to negotiate modification; demolition orders to follow if no agreement.

Orders

  • ['Declaration that DA 03/1992 was not validly made.' 'Declaration that consent to DA 03/1992 is null and void.' 'Declaration that the pergola erected by Second Respondent was without development consent under Part 4 of the Environmental Planning & Assessment Act 1979.' 'Declaration that development carried out was...