Ferral-Smith v Villanueva (No 2) [2011] NSWLEC 206

Ferral-Smith v Villanueva (No 2) [2011] NSWLEC 206

The development consent was invalid because it was granted in breach of clause 15 of the Hornsby Local Environmental Plan 1994 without a SEPP1 objection, and the council officer's reliance on existing use rights was erroneous. Costs follow the event except for the unsuccessful motion to amend.

Parties
Applicant: Rodney James Ferral-Smith; First Respondent: Allan Miralles Villanueva; Second Respondent: Aileen Lariza Villanueva; Third Respondent: Hornsby Shire Council
Jurisdiction
Australia
Judgment Date
15 November 2011
Procedural Posture
Judicial Review / Principal Judgment/final Orders
Outcome
Declaration that development consent is invalid; costs awarded against council except for notice of motion to amend; no costs against first and second respondents.
Legal Topics
Development Consent, Local Environmental Plan, Judicial Review, Costs Orders
Administrative Law Planning Law Development Consent Local Environmental Plan Judicial Review Costs Orders

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Parties

Rodney James Ferral-Smith

Applicant

Allan Miralles Villanueva

First Respondent

Aileen Lariza Villanueva

Second Respondent

Hornsby Shire Council

Third Respondent

Procedural Posture

Judicial Review / Principal Judgment/final Orders

Legal Issues

  1. 1 Whether the development consent was granted in breach of the Hornsby Local Environmental Plan 1994
  2. 2 Validity of development consent in absence of SEPP1 objection
  3. 3 Entitlement to costs against council and parties lodging application

Ratio Decidendi

The development consent was invalid because it was granted in breach of clause 15 of the Hornsby Local Environmental Plan 1994 without a SEPP1 objection, and the council officer's reliance on existing use rights was erroneous. Costs follow the event except for the unsuccessful motion to amend.

Court Disposition

Declaration that development consent is invalid; costs awarded against council except for notice of motion to amend; no costs against first and second respondents.

Orders

  • Declaration the grant of development consent by Hornsby Shire Council to DA/479/2011 was in breach of cl 15 of the Hornsby Local Environmental Plan 1994.
  • Declaration that the development consent granted by Hornsby Shire Council to DA/479/2011 is invalid and of no effect.