Ferral-Smith v Villanueva [2011] NSWLEC 204

Ferral-Smith v Villanueva [2011] NSWLEC 204

Leave to amend the summons was refused because the remaining proposed amendments were unnecessary to determine the existing invalidity challenge, the applicant no longer pressed the delegation point, the council had accepted that the pending development application would be determined by a full Council meeting, and any future residual relevance of the resolution appeared hypothetical and outside the proceedings as presently constituted, particularly given the proximity of the hearing.

Jurisdiction
Australia
Judgment Date
11 November 2011
Procedural Posture
Class 4 Proceedings Seeking a Declaration That a Development Consent Is Invalid / Notice of Motion to Amend Summons
Outcome
Motion to amend summons dismissed; costs reserved.
Legal Topics
['development Consent' 'amendment of Summons' 'invalidity of Development Consent' 'delegated Power' 'declaratory Relief' 'injunctive Relief']
['planning and Environment Law' 'practice and Procedure'] ['development Consent' 'amendment of Summons' 'invalidity of Development Consent' 'delegated Power' 'declaratory Relief' 'injunctive Relief']

Case Brief

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Procedural Posture

Class 4 Proceedings Seeking a Declaration That a Development Consent Is Invalid / Notice of Motion to Amend Summons

Legal Issues

  1. 1 ['Whether leave should be granted to amend the summons to add a further ground that the development consent was granted by a council officer without delegated power.' 'Whether leave should be granted to add a prayer for a declaration that a council resolution of 2 November 2005 is valid.' 'Whether leave should be granted to add a prayer restraining the council from deciding development applications on certain lots otherwise than in accordance with the 2005 resolution.']

Ratio Decidendi

Leave to amend the summons was refused because the remaining proposed amendments were unnecessary to determine the existing invalidity challenge, the applicant no longer pressed the delegation point, the council had accepted that the pending development application would be determined by a full Council meeting, and any future residual relevance of the resolution appeared hypothetical and outside the proceedings as presently constituted, particularly given the proximity of the hearing.

Court Disposition

Motion to amend summons dismissed; costs reserved.

Orders

  • ['Notice of motion is dismissed.' 'Costs are reserved.']