Davis v Dodevski [2021] NSWLEC 93

Davis v Dodevski [2021] NSWLEC 93

The Court held that because Lot 195 did not satisfy the minimum 100 ha lot size and did not meet any alternative criteria in Nambucca Local Environmental Plan 2010 cl 4.2A, Council had no power to grant development consent for a dwelling. Council’s references to compliance with the clause were conclusory and unsupported by reasoning or evidence, amounting to an error of law. Consent was thus invalid.

Parties
Applicant: Karen Davis; First Respondent: Igor Dodevski; Second Respondent: Jyoti Elanor Fraya Durrant; Third Respondent: Nambucca Valley Council
Jurisdiction
Australia
Judgment Date
27 August 2021
Procedural Posture
Judicial Review / Principal Judgment, Final Orders on Invalidity and Costs
Outcome
Declaration of invalidity—consent declared invalid; orders as to costs reserved, subsequently ordered third respondent pay applicant's costs
Legal Topics
Development Consent, Jurisdictional Fact, Local Environmental Plans, Minimum Lot Size, Judicial Review, Irrelevant Considerations
Administrative Law Planning and Environment Development Consent Jurisdictional Fact Local Environmental Plans Minimum Lot Size Judicial Review Irrelevant Considerations

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Parties

Karen Davis

Applicant

Igor Dodevski

First Respondent

Jyoti Elanor Fraya Durrant

Second Respondent

Nambucca Valley Council

Third Respondent

Procedural Posture

Judicial Review / Principal Judgment, Final Orders on Invalidity and Costs

Legal Issues

  1. 1 Whether the Nambucca Valley Council failed to comply with the precondition in the local environmental plan when granting development consent for a dwelling on rural land of less than 100 ha.
  2. 2 Whether the minimum lot size requirements of the Nambucca Local Environmental Plan 2010 were complied with before consenting to the dwelling.
  3. 3 Whether Council erred in law by taking into account irrelevant considerations, specifically potential legal liability, in the consent process.

Ratio Decidendi

The Court held that because Lot 195 did not satisfy the minimum 100 ha lot size and did not meet any alternative criteria in Nambucca Local Environmental Plan 2010 cl 4.2A, Council had no power to grant development consent for a dwelling. Council’s references to compliance with the clause were conclusory and unsupported by reasoning or evidence, amounting to an error of law. Consent was thus invalid.

Court Disposition

Declaration of invalidity—consent declared invalid; orders as to costs reserved, subsequently ordered third respondent pay applicant's costs

Orders

  • The Court declares that development consent for development application 2020/090 for the construction of a dwelling house on Lot 195 in DP 755564 is invalid and of no effect.
  • The Court orders that costs and consequential orders are reserved.