McGinn v Inner West Council [2018] NSWCA 90

McGinn v Inner West Council [2018] NSWCA 90

The s 149 certificate relied on by Ms McGinn concerned the Ashfield Local Environmental Plan 2013, which commenced on 23 December 2013, after the development consent, the Land and Environment Court decisions and the Court of Appeal decision. The applicable instrument at the time of the consent was the Ashfield Local Environmental Plan 1985, under which detached dual occupancies were permitted with Council consent. The asserted new evidence therefore did not establish fraud or any irregularity, and the notice of motion was dismissed.

Jurisdiction
Australia
Judgment Date
01 May 2018
Procedural Posture
Notice of Motion to Set Aside Judgment for Fraud and for a New Trial / Court of Appeal Notice of Motion After Dismissal of Appeal
Outcome
The notice of motion was dismissed with costs.
Legal Topics
['setting Aside Judgment for Fraud' 'new Evidence' 'development Consent' 'local Environmental Plans' 'admissibility of Legislative Instruments and Official Notifications']
['civil Procedure' 'planning and Environment Law' 'evidence'] ['setting Aside Judgment for Fraud' 'new Evidence' 'development Consent' 'local Environmental Plans' 'admissibility of Legislative Instruments and Official Notifications']

Case Brief

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Procedural Posture

Notice of Motion to Set Aside Judgment for Fraud and for a New Trial / Court of Appeal Notice of Motion After Dismissal of Appeal

Legal Issues

  1. 1 ['Whether the Court of Appeal judgment should be set aside on the ground that it was fraudulently obtained.' 'Whether a s 149 planning certificate stating that detached dual occupancies were prohibited was new evidence capable of establishing fraud.' "Whether the respondent solicitor's affidavit annexing the Ashfield Local Environmental Plan 1985 and official notification material was admissible or relevant."]

Ratio Decidendi

The s 149 certificate relied on by Ms McGinn concerned the Ashfield Local Environmental Plan 2013, which commenced on 23 December 2013, after the development consent, the Land and Environment Court decisions and the Court of Appeal decision. The applicable instrument at the time of the consent was the Ashfield Local Environmental Plan 1985, under which detached dual occupancies were permitted with Council consent. The asserted new evidence therefore did not establish fraud or any irregularity, and the notice of motion was dismissed.

Court Disposition

The notice of motion was dismissed with costs.

Orders

  • ['The notice of motion is dismissed with costs.']