Lisarowraid Incorporated (Inc) v Gosford City Council [2012] NSWLEC 232

Lisarowraid Incorporated (Inc) v Gosford City Council [2012] NSWLEC 232

The Council's resolution supported the development application and purported to delegate to the General Manager authority only to determine the application for approval subject to conditions. That delegation was beyond power and fettered the General Manager's discretion because neither the Council nor the General Manager considered and determined the application with the discretion required by ss 79C and 80 of the Environmental Planning and Assessment Act 1979. The failure was fundamental, and because no party sought the exercise of the Court's alternative discretion and all parties sought an end to the litigation without further costs, it was inappropriate to make orders under Div 3 of...

Jurisdiction
Australia
Judgment Date
12 October 2012
Procedural Posture
Class 4 Judicial Review Proceedings Seeking a Declaration That a Development Consent Was Invalid / Ex Tempore Judgment on Summons Filed 13 September 2012
Outcome
Development consent declared invalid and of no force or effect; each party to pay its own costs.
Legal Topics
['validity of Development Consent' 'delegation of Council Functions' 'fettering of Discretion' 'declaratory Relief' 'court Discretion Under the Land and Environment Court Act 1979' 'overriding Purpose Under the Civil Procedure Act 2005']
['environmental Planning Law' 'administrative Law' 'judicial Review'] ['validity of Development Consent' 'delegation of Council Functions' 'fettering of Discretion' 'declaratory Relief' 'court Discretion Under the Land and Environment Court Act 1979' 'overriding Purpose Under the Civil Procedure Act 2005']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings Seeking a Declaration That a Development Consent Was Invalid / Ex Tempore Judgment on Summons Filed 13 September 2012

Legal Issues

  1. 1 ['Whether Gosford City Council validly delegated authority to its General Manager to determine the development application for approval subject to conditions.' "Whether the Council's resolution imposed an unauthorised fetter on the General Manager's discretion under the Environmental Planning and Assessment Act 1979." 'Whether the Court should exercise discretion under Div 3 of Pt 3 of the Land and Environment Court Act 1979 instead of declaring the consent invalid.']

Ratio Decidendi

The Council's resolution supported the development application and purported to delegate to the General Manager authority only to determine the application for approval subject to conditions. That delegation was beyond power and fettered the General Manager's discretion because neither the Council nor the General Manager considered and determined the application with the discretion required by ss 79C and 80 of the Environmental Planning and Assessment Act 1979. The failure was fundamental, and because no party sought the exercise of the Court's alternative discretion and all parties sought an end to the litigation without further costs, it was inappropriate to make orders under Div 3 of...

Court Disposition

Development consent declared invalid and of no force or effect; each party to pay its own costs.

Orders

  • ['Declare that Development Consent DA38140/2010 as described in the Notice of Determination issued by Gosford City Council, under the hand of its General Manager, and dated 28 May 2012, for an 800 seat place of public worship on lots 2 & 3 in deposited plan 3334,131-147 MacDonalds Road, Lisarow is invalid and is of...