Brown v Randwick City Council [2011] NSWLEC 172

Brown v Randwick City Council [2011] NSWLEC 172

The November determination granting consent was invalid because the Council's power under s 80 of the EPA Act had already been exercised and spent by the September determination refusing consent, and that earlier refusal had not been rescinded, revoked or reviewed. The September refusal was effective without notification under s 81. Section 101 did not protect the November determination because the public notice failed to describe the approved development by omitting the deck and, in any event, the successful grounds involved jurisdictional error. The Council also materially failed to consider cl 4.4 of the Dwellings DCP, concerning side setbacks and access to natural light, daylight and...

Jurisdiction
Australia
Judgment Date
14 September 2011
Procedural Posture
Class 4 Judicial Review Proceedings Challenging Validity of Development Consent / Principal Ex Tempore Judgment After Hearing
Outcome
Application upheld; November determination and notice of determination declared invalid; costs reserved.
Legal Topics
['development Consent' 'jurisdictional Error' 'privative Clause' 'relevant Considerations' 'wednesbury Unreasonableness' 'notification of Development Applications' 'declaratory Relief']
['planning and Environment Law' 'administrative Law' 'judicial Review'] ['development Consent' 'jurisdictional Error' 'privative Clause' 'relevant Considerations' 'wednesbury Unreasonableness' 'notification of Development Applications' 'declaratory Relief']

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Procedural Posture

Class 4 Judicial Review Proceedings Challenging Validity of Development Consent / Principal Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether Randwick City Council had power under s 80 of the Environmental Planning and Assessment Act 1979 to determine the development application on 11 November 2008 by granting consent after its delegate had determined the application on 17 September 2008 by refusing consent.' 'Whether s 101 of the Environmental Planning and Assessment Act 1979 precluded judicial review of the November determination and notification.' 'Whether the Council failed to consider relevant matters under SEPP 71, the Randwick Local Environmental Plan 1998 and the Randwick City Council Dwelling Houses and Attached Dual Occupancies Development Control Plan.' 'Whether the decision to grant consent was manifestly unreasonable in the Wednesbury sense.' 'Whether the Council failed to notify adjoining owners in accordance with s 79A(2) of the Environmental Planning and Assessment Act 1979 and the Notification DCP.' 'Whether declaratory relief should be refused in the exercise of discretion or pursuant to s 25B of the Land and Environment Court Act 1979.']

Ratio Decidendi

The November determination granting consent was invalid because the Council's power under s 80 of the EPA Act had already been exercised and spent by the September determination refusing consent, and that earlier refusal had not been rescinded, revoked or reviewed. The September refusal was effective without notification under s 81. Section 101 did not protect the November determination because the public notice failed to describe the approved development by omitting the deck and, in any event, the successful grounds involved jurisdictional error. The Council also materially failed to consider cl 4.4 of the Dwellings DCP, concerning side setbacks and access to natural light, daylight and...

Court Disposition

Application upheld; November determination and notice of determination declared invalid; costs reserved.

Orders

  • ['Declares that the determination of Randwick City Council on 11 November 2008 granting consent to development application DA 441/2008 for a new swimming pool and deck to rear of existing dwelling at 15 Seaside Parade, South Coogee, is invalid.' 'Declares that the notice of determination dated 20 November 2008...