Mulpha FKP Pty Ltd v The Hills Shire Council [2012] NSWLEC 101

Mulpha FKP Pty Ltd v The Hills Shire Council [2012] NSWLEC 101

Clause 97(4) applied to the applicant's notice of voluntary surrender even though no development had commenced. The statutory voluntary surrender regime created a right of voluntary surrender subject only to the consent authority determining the matters in cl 97(4)(a); the council's notification function was therefore a duty, not an absolute discretion. More than a reasonable time had elapsed for the council to decide whether surrender would have an adverse impact on any third party or the locality. The possible reduction in local infrastructure contributions and land release contributions was not relevant to cl 97(4)(a)(ii), because no development had commenced, no contributions were...

Jurisdiction
Australia
Judgment Date
09 May 2012
Procedural Posture
Class 4 Judicial Review Proceedings / Principal Judgment
Outcome
The applicant was substantially successful; the council was ordered to decide the cl 97(4)(a)(ii) question by 23 May 2012 and act according to that decision.
Legal Topics
['voluntary Surrender of Development Consent' 'consent Authority Notification Function' 'statutory Duty Versus Discretion' 'reasonable Time to Perform Statutory Function' 'judicial Review Relief']
['environmental and Planning Law' 'administrative Law'] ['voluntary Surrender of Development Consent' 'consent Authority Notification Function' 'statutory Duty Versus Discretion' 'reasonable Time to Perform Statutory Function' 'judicial Review Relief']

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Procedural Posture

Class 4 Judicial Review Proceedings / Principal Judgment

Legal Issues

  1. 1 ['Whether cl 97(4) of the Environmental Planning and Assessment Regulation 2000 applies to a notice of voluntary surrender where no part of the development has been carried out.' 'Whether the council was under a duty to exercise its notification function under cl 97(4)(a) of the Environmental Planning and Assessment Regulation 2000.' 'Whether a reasonable time for the council to perform that function had expired.' 'Whether potential differences in local infrastructure contributions or land release contributions were relevant adverse impacts on a third party or the locality under cl 97(4)(a)(ii).' "What relief was appropriate to remedy the council's failure to perform its statutory function."]

Ratio Decidendi

Clause 97(4) applied to the applicant's notice of voluntary surrender even though no development had commenced. The statutory voluntary surrender regime created a right of voluntary surrender subject only to the consent authority determining the matters in cl 97(4)(a); the council's notification function was therefore a duty, not an absolute discretion. More than a reasonable time had elapsed for the council to decide whether surrender would have an adverse impact on any third party or the locality. The possible reduction in local infrastructure contributions and land release contributions was not relevant to cl 97(4)(a)(ii), because no development had commenced, no contributions were...

Court Disposition

The applicant was substantially successful; the council was ordered to decide the cl 97(4)(a)(ii) question by 23 May 2012 and act according to that decision.

Orders

  • ["The respondent by 23 May 2012 is to decide whether the surrender the subject of the applicant's notice of voluntary surrender of development consent DA 2100/2007/ZA delivered to the respondent on or about 26 August 2011, will or will not have an adverse impact on any third party or the locality." 'If the decision...