Greenwood v Warringah Council [2012] NSWLEC 152

Greenwood v Warringah Council [2012] NSWLEC 152

The Council did not have proper power to impose the sunset clause on the modification of the development consent in this case, due to lack of sufficient nexus to the modification application; the sunset clause (condition 14) is invalid and should be severed; Scott was denied procedural fairness as he was not given notice nor opportunity to be heard regarding the imposition of the time-limiting condition; valid notice was not given to the person entitled to act on the consent; the modification application did not abate on Robert Greenwood's death; the consent is limited in land area and materials as per existing use rights and validly modified conditions.

Jurisdiction
Australia
Judgment Date
09 July 2012
Procedural Posture
Class 4 Proceedings / Judgment With Orders for Further Disposition
Outcome
Orders for parties to confer on final orders reflecting reasons, costs, and listing of both matters for mention; sunset clause declared invalid.
Legal Topics
['modification of Development Consent' 'procedural Fairness' 'existing Use Rights' 'notice Requirements' 'construction of Development Consents' 'abatement on Death' 'validity of Conditions Imposed']
['planning and Environment Law' 'administrative Law'] ['modification of Development Consent' 'procedural Fairness' 'existing Use Rights' 'notice Requirements' 'construction of Development Consents' 'abatement on Death' 'validity of Conditions Imposed']

Case Brief

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Procedural Posture

Class 4 Proceedings / Judgment With Orders for Further Disposition

Legal Issues

  1. 1 ["Did s 102 of the Environmental Planning & Assessment Act 1979 (NSW) confer power upon the Council to modify the First Consent by adding the 'sunset clause' condition?" "Did the respondent deny the applicant procedural fairness in the course of its decision to modify the First Consent by adding the 'sunset clause' condition?" "Was the Council's decision to modify the First Consent by adding the 'sunset clause' condition invalid and/or ineffective because notice of the modification could not be given to the deceased Robert Greenwood and was not given to the applicant?" "Did the modification application lodged by Robert Greenwood in July 1993 lapse, abate or cease to be effective upon his death so that Council's later decision was ineffective?" 'Are the recycling activities permitted by the First Consent limited to that of sandstone?' 'Does the land area covered by the First Consent include ML 46, ML 47 and ML 52, as set out in the plan of quarry restoration?']

Ratio Decidendi

The Council did not have proper power to impose the sunset clause on the modification of the development consent in this case, due to lack of sufficient nexus to the modification application; the sunset clause (condition 14) is invalid and should be severed; Scott was denied procedural fairness as he was not given notice nor opportunity to be heard regarding the imposition of the time-limiting condition; valid notice was not given to the person entitled to act on the consent; the modification application did not abate on Robert Greenwood's death; the consent is limited in land area and materials as per existing use rights and validly modified conditions.

Court Disposition

Orders for parties to confer on final orders reflecting reasons, costs, and listing of both matters for mention; sunset clause declared invalid.

Orders

  • ['The parties are directed to confer on orders reflecting the findings and reasons in this judgment, and the question of costs.' 'The order adjourning related Class 1 proceedings is vacated.' 'Both matters are to be listed together for mention and further directions at 4pm Monday 6 August 2012.']