Mulyan Pty Ltd v Cowra Shire Council & Anor [1999] NSWLEC 212

Mulyan Pty Ltd v Cowra Shire Council & Anor [1999] NSWLEC 212

The letter of 1 April 1998 was not an operative consent within s 77(1) of the Environmental Planning & Assessment Act 1979 because, on its proper construction, it gave consent only on the basis set out in the letter and only upon the occurrence of future events and satisfaction of conditions, including success by Bryant in the Equity proceedings. Although owner's consent could be attached to the prescribed form rather than signed on it, the attached letter was not in law a consent, so the mandatory condition precedent to a valid development application was not satisfied.

Jurisdiction
Australia
Judgment Date
14 September 1999
Procedural Posture
Proceedings Concerning the Validity of a Development Application and Development Consent / Separate Determination of Preliminary Questions Pursuant to Pt 31 R 2 of the Supreme Court Rules
Outcome
First preliminary question answered No; the second and third preliminary questions were not considered.
Legal Topics
['development Application' "owner's Consent" 'prescribed Form' 'conditional Consent' 'environmental Planning & Assessment Act 1979 S 77(1)']
['environmental and Planning Law' 'administrative Law' 'property Law'] ['development Application' "owner's Consent" 'prescribed Form' 'conditional Consent' 'environmental Planning & Assessment Act 1979 S 77(1)']

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Procedural Posture

Proceedings Concerning the Validity of a Development Application and Development Consent / Separate Determination of Preliminary Questions Pursuant to Pt 31 R 2 of the Supreme Court Rules

Legal Issues

  1. 1 ['Whether Mulyan Pty Ltd consented to T J Bryant Pty Ltd making development application 125/98 to Cowra Shire Council' 'If Mulyan Pty Ltd consented, whether the development application before the Court was so different from that made to Cowra Shire Council as to constitute a new development application' "If the application was a new development application, whether Mulyan Pty Ltd's consent was necessary for the development application before the Court" "Whether the owner's consent in writing had to be executed on the prescribed development application form or could be attached or annexed to it"]

Ratio Decidendi

The letter of 1 April 1998 was not an operative consent within s 77(1) of the Environmental Planning & Assessment Act 1979 because, on its proper construction, it gave consent only on the basis set out in the letter and only upon the occurrence of future events and satisfaction of conditions, including success by Bryant in the Equity proceedings. Although owner's consent could be attached to the prescribed form rather than signed on it, the attached letter was not in law a consent, so the mandatory condition precedent to a valid development application was not satisfied.

Court Disposition

First preliminary question answered No; the second and third preliminary questions were not considered.

Orders

  • ['The letter of 1 April 1998 which accompanied the development application is not a consent of the owner of the land within the meaning of s 77(1) of the Environmental Planning & Assessment Act 1979.' 'Did Mulyan consent to Bryant making development application 125/98 to the Council? Answer: No.']