Inglis v Buckley [2023] NSWLEC 77

Inglis v Buckley [2023] NSWLEC 77

The Development Consent was invalid because cl 4.2C(3)(c) of Tumut Local Environmental Plan 2012 (NSW) made Council's satisfaction that the potential for land use conflict would not be increased as a result of the subdivision a fundamental precondition to granting consent. On the evidence, including the absence of an officer report recommending approval or specifically addressing cl 4.2C(3), the absence of the express terms of cl 4.2C(3)(c) before the councillors, and the councillors' focus on dwelling entitlement issues under cl 4.2C(3)(a) and (b), the Applicant established on the balance of probabilities that Council was not satisfied of the essential matter in cl 4.2C(3)(c) when it...

Jurisdiction
Australia
Judgment Date
20 July 2023
Procedural Posture
Class 4 Judicial Review Challenge to Grant of Development Consent / Principal Judgment After Hearing
Outcome
Development consent declared invalid and of no effect; costs reserved.
Legal Topics
['judicial Review of Development Consent' 'subdivision and Boundary Adjustment in RU1 Primary Production Zone' 'statutory Precondition Requiring Consent Authority Satisfaction' 'potential for Land Use Conflict' 'delegation and Indivisibility of Development Assessment Function' 'development Consent Conditions']
['environmental Planning Law' 'administrative Law' 'local Government Law'] ['judicial Review of Development Consent' 'subdivision and Boundary Adjustment in RU1 Primary Production Zone' 'statutory Precondition Requiring Consent Authority Satisfaction' 'potential for Land Use Conflict' 'delegation and Indivisibility of Development Assessment Function' 'development Consent Conditions']

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Procedural Posture

Class 4 Judicial Review Challenge to Grant of Development Consent / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Did Snowy Valleys Council form the positive state of satisfaction required by cl 4.2C(3)(c) of Tumut Local Environmental Plan 2012 (NSW) that the potential for land use conflict will not be increased as a result of the subdivision?' 'Was the development consent validly granted where the elected council resolved to approve the development application and delegate to the CEO the application of standard conditions of development consent when proposed conditions were not before the elected council?']

Ratio Decidendi

The Development Consent was invalid because cl 4.2C(3)(c) of Tumut Local Environmental Plan 2012 (NSW) made Council's satisfaction that the potential for land use conflict would not be increased as a result of the subdivision a fundamental precondition to granting consent. On the evidence, including the absence of an officer report recommending approval or specifically addressing cl 4.2C(3), the absence of the express terms of cl 4.2C(3)(c) before the councillors, and the councillors' focus on dwelling entitlement issues under cl 4.2C(3)(a) and (b), the Applicant established on the balance of probabilities that Council was not satisfied of the essential matter in cl 4.2C(3)(c) when it...

Court Disposition

Development consent declared invalid and of no effect; costs reserved.

Orders

  • ['That development consent DA 2022/0023 granted by the Second Respondent to the First Respondent on 19 May 2022 as amended by Notice of Determination dated 24 August 2022 is invalid and of no effect.' 'Costs are reserved.']