Adams v Great Lakes Council & Anor (No 2) [2010] NSWLEC 37

Adams v Great Lakes Council & Anor (No 2) [2010] NSWLEC 37

The Court held as a preliminary view that the absence of owner's consent when the development consent was granted was not jurisdictional error rendering the consent void, and could be addressed by discretionary relief including a s 25B order. The Court also held that the triangular land became Crown road and part of Kinka Road in 1968 because it was shown on the relevant notation plan as required for road widening and was within the solid boundary of Kinka Road; it therefore could be transferred to Great Lakes Council by the gazette notice of 5 June 2009 under s 151 of the Roads Act 1993. Because Department of Lands correspondence asserted a contrary view, the Department should be...

Jurisdiction
Australia
Judgment Date
25 March 2010
Procedural Posture
Proceedings Challenging the Grant of Development Consent / Judgment on Whether the Court Should Exercise Discretion to Make a Land and Environment Court Act 1979 S 25 B Order Suspending the Grant of Development Consent to Enable Owner's Consent to Be Provided
Outcome
Preliminary view that Great Lakes Council has been the owner of the land since the transfer of Kinka Road by gazette notice of 5 June 2009; the Department of Lands should be formally notified and given an opportunity to participate before final orders.
Legal Topics
['development Consent' "owner's Consent to Development Application" 'crown Road Transfer' 'discretionary Relief' 'validity of Development Consent']
['planning and Environment Law' 'local Government' 'crown Land and Roads'] ['development Consent' "owner's Consent to Development Application" 'crown Road Transfer' 'discretionary Relief' 'validity of Development Consent']

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Procedural Posture

Proceedings Challenging the Grant of Development Consent / Judgment on Whether the Court Should Exercise Discretion to Make a Land and Environment Court Act 1979 S 25 B Order Suspending the Grant of Development Consent to Enable Owner's Consent to Be Provided

Legal Issues

  1. 1 ["Whether the grant of development consent without the owner's written consent required by cl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000 was void or could be cured." 'Whether the triangular portion of land became part of Kinka Road as a Crown road in 1968 and was transferred to Great Lakes Council by the gazette notice of 5 June 2009 under s 151 of the Roads Act 1993.' 'Whether the Court should exercise discretion under s 124 of the Environmental Planning and Assessment Act 1979 or s 25B of the Land and Environment Court Act 1979 rather than declare the development consent invalid.' 'Whether the Department of Lands should be given an opportunity to participate before final orders are made.']

Ratio Decidendi

The Court held as a preliminary view that the absence of owner's consent when the development consent was granted was not jurisdictional error rendering the consent void, and could be addressed by discretionary relief including a s 25B order. The Court also held that the triangular land became Crown road and part of Kinka Road in 1968 because it was shown on the relevant notation plan as required for road widening and was within the solid boundary of Kinka Road; it therefore could be transferred to Great Lakes Council by the gazette notice of 5 June 2009 under s 151 of the Roads Act 1993. Because Department of Lands correspondence asserted a contrary view, the Department should be...

Court Disposition

Preliminary view that Great Lakes Council has been the owner of the land since the transfer of Kinka Road by gazette notice of 5 June 2009; the Department of Lands should be formally notified and given an opportunity to participate before final orders.

Orders

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