South East Forest Rescue Inc v Allied Natural Wood Enterprises Pty Ltd [2021] NSWLEC 124

South East Forest Rescue Inc v Allied Natural Wood Enterprises Pty Ltd [2021] NSWLEC 124

The Council's 14 September 2021 purported grant of development consent was invalid because, before that date, the Company had substantially carried out the additions and alterations for which consent was sought, and the Council had no power to grant retrospective development consent for works already carried out. The Council was solely responsible for the need for the fresh Class 4 proceedings because it passed the invalid resolution after being served with evidence that the works were substantially complete, and there was no evidence that the Company caused the Council to take that course. It was therefore appropriate to set aside the purported consent, restrain reliance on it, and order...

Jurisdiction
Australia
Judgment Date
11 November 2021
Procedural Posture
Class 4 Judicial Review Proceedings / Final Declaration and Restraining Orders, Followed by Costs Determination
Outcome
The purported development consent granted on 14 September 2021 was declared invalid, void and of no force and effect, set aside, and the First Respondent was restrained from undertaking development in reliance on it. The Second Respondent was ordered to pay the costs of the Applicant and the First Respondent.
Legal Topics
['validity of Development Consent' 'retrospective Development Consent' 'development Already Carried Out' 'submitting Appearance Save as to Costs' 'costs Liability of Consent Authority and Development Applicant']
['environmental Planning and Assessment' 'judicial Review' 'costs'] ['validity of Development Consent' 'retrospective Development Consent' 'development Already Carried Out' 'submitting Appearance Save as to Costs' 'costs Liability of Consent Authority and Development Applicant']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings / Final Declaration and Restraining Orders, Followed by Costs Determination

Legal Issues

  1. 1 ["Whether the Council's 14 September 2021 determination purporting to grant development consent was invalid because it approved development that had already been substantially carried out." 'Whether the First Respondent should be restrained from undertaking development in reliance on the purported development consent.' 'Whether the Council, the Company, or both should pay the costs of the Applicant and the Company.']

Ratio Decidendi

The Council's 14 September 2021 purported grant of development consent was invalid because, before that date, the Company had substantially carried out the additions and alterations for which consent was sought, and the Council had no power to grant retrospective development consent for works already carried out. The Council was solely responsible for the need for the fresh Class 4 proceedings because it passed the invalid resolution after being served with evidence that the works were substantially complete, and there was no evidence that the Company caused the Council to take that course. It was therefore appropriate to set aside the purported consent, restrain reliance on it, and order...

Court Disposition

The purported development consent granted on 14 September 2021 was declared invalid, void and of no force and effect, set aside, and the First Respondent was restrained from undertaking development in reliance on it. The Second Respondent was ordered to pay the costs of the Applicant and the First Respondent.

Orders

  • ['Declare that the development consent purportedly granted to the First Respondent by the Second Respondent pursuant to section 4.16 of the Environmental Planning and Assessment Act 1979 (EP&A Act) on 14 September 2021 for development application 2020.81 in relation to land at Lot 16 DP 1066187 at Edrom Road, Edrom...