Barca v Wollondilly Shire Council [2014] NSWLEC 118

Barca v Wollondilly Shire Council [2014] NSWLEC 118

The determination by the council refusing consent was invalid due to failure to properly exhibit and notify the amended EIS, but the development application itself was not invalid. The Court has jurisdiction to hear the merits appeal on the basis of deemed refusal under s 97(1)(b) of the EPAA, as no valid determination was ever made and the deemed refusal provisions were engaged.

Parties
Applicant: Rosaria Maria and Mimma Barca; First Respondent: Wollondilly Shire Council; Second Respondent: Allied Mills Pty Ltd; Third Respondent: Sell and Parker Pty Ltd
Jurisdiction
Australia
Judgment Date
07 August 2014
Procedural Posture
Class 1 Merits Appeal / Separate Question Determination
Outcome
Separate questions answered: DA not exhibited as required by s 79 EPAA; Court has jurisdiction to determine the DA as amended. Matter to be listed for further directions.
Legal Topics
Notification and Exhibition Requirements for Designated Development, Validity of Determination of Consent Authority, Jurisdiction of Land and Environment Court, Public Exhibition Requirements, Deemed Refusal Provisions
Environmental Law Administrative Law Planning Law Notification and Exhibition Requirements for Designated Development Validity of Determination of Consent Authority Jurisdiction of Land and Environment Court Public Exhibition Requirements Deemed Refusal Provisions

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Parties

Rosaria Maria and Mimma Barca

Applicant

Wollondilly Shire Council

First Respondent

Allied Mills Pty Ltd

Second Respondent

Sell and Parker Pty Ltd

Third Respondent

Procedural Posture

Class 1 Merits Appeal / Separate Question Determination

Legal Issues

  1. 1 Whether a determination of a consent authority refusing to grant consent to an application for designated development was invalid by reason of its failure to properly comply with statutory notification and exhibition requirements
  2. 2 Whether the invalidity gave rise to a deemed refusal by the consent authority
  3. 3 Whether the Court had jurisdiction to entertain a merits appeal against an invalid determination of a consent authority refusing to grant consent

Ratio Decidendi

The determination by the council refusing consent was invalid due to failure to properly exhibit and notify the amended EIS, but the development application itself was not invalid. The Court has jurisdiction to hear the merits appeal on the basis of deemed refusal under s 97(1)(b) of the EPAA, as no valid determination was ever made and the deemed refusal provisions were engaged.

Court Disposition

Separate questions answered: DA not exhibited as required by s 79 EPAA; Court has jurisdiction to determine the DA as amended. Matter to be listed for further directions.

Orders

  • The matter be listed for further directions before the Registrar on 15 August 2014.
  • The exhibits be returned.