Mirvac Projects Pty Ltd v Ku-Ring-Gai Council & Anor [2007] NSWLEC 245

Mirvac Projects Pty Ltd v Ku-Ring-Gai Council & Anor [2007] NSWLEC 245

The Court refused leave to raise issue 1A because it was not appropriate in these Class 1 proceedings to embark on an inquiry into the validity of the development consent. The Court remained bound by Hannan, distinguished Bhardwaj, and considered that the statutory regime requires validity challenges and discretionary relief concerning breach of the EPA Act to be dealt with through the Court's specific jurisdiction rather than by undermining the basis of a s 96 modification application. The Court granted limited leave on issue 1B because the alleged breach of the development standard and failure to obtain a SEPP 1 objection could be treated as a relevant consideration in determining the...

Jurisdiction
Australia
Judgment Date
02 May 2007
Procedural Posture
Class 1 Application to Modify Development Consent DA 1388/04 Under S 96 of the Environmental Planning and Assessment Act 1979 / Interlocutory Ex Tempore Judgment on the Second Respondent's Application for Leave to Raise Additional Issues
Outcome
Leave refused for the Second Respondent to rely on issue 1A; limited leave granted to adduce evidence and argument on issue 1B as a relevant consideration.
Legal Topics
['modification of Development Consent' 'validity Challenge to Development Consent in Class 1 Proceedings' 'effect of Notified Development Consent Pending Findings of Invalidity' 'sepp 1 Dispensation' 'jurisdictional Fact' 'leave to Raise Additional Issues']
['environmental Planning and Development Law' 'administrative Law' 'land and Environment Court Procedure'] ['modification of Development Consent' 'validity Challenge to Development Consent in Class 1 Proceedings' 'effect of Notified Development Consent Pending Findings of Invalidity' 'sepp 1 Dispensation' 'jurisdictional Fact' 'leave to Raise Additional Issues']

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Procedural Posture

Class 1 Application to Modify Development Consent DA 1388/04 Under S 96 of the Environmental Planning and Assessment Act 1979 / Interlocutory Ex Tempore Judgment on the Second Respondent's Application for Leave to Raise Additional Issues

Legal Issues

  1. 1 ['Whether the Second Respondent should be granted leave to argue that Development Consent No. DA 1388/04 is void because clause 25I(2)(c) of the KPSO was breached and no SEPP 1 dispensation was obtained.' 'Whether an allegedly invalid development consent can be challenged as a jurisdictional fact in Class 1 proceedings to modify the consent under s 96 of the Environmental Planning and Assessment Act 1979.' 'Whether the alleged failure to obtain a SEPP 1 dispensation from clause 25I(2)(c) is a relevant consideration in determining the modification application.']

Ratio Decidendi

The Court refused leave to raise issue 1A because it was not appropriate in these Class 1 proceedings to embark on an inquiry into the validity of the development consent. The Court remained bound by Hannan, distinguished Bhardwaj, and considered that the statutory regime requires validity challenges and discretionary relief concerning breach of the EPA Act to be dealt with through the Court's specific jurisdiction rather than by undermining the basis of a s 96 modification application. The Court granted limited leave on issue 1B because the alleged breach of the development standard and failure to obtain a SEPP 1 objection could be treated as a relevant consideration in determining the...

Court Disposition

Leave refused for the Second Respondent to rely on issue 1A; limited leave granted to adduce evidence and argument on issue 1B as a relevant consideration.

Orders

  • ['Leave to the Second Respondent to rely upon issue 1A is refused.' 'Leave is granted to the Second Respondent to adduce evidence and argument in respect of issue 1B to the extent that it concerns clause 25I and the alleged SEPP 1 failure as a relevant matter to be taken into account.']