The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources & Anor [2004] NSWCA 424

The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources & Anor [2004] NSWCA 424

The appellant acquired a substantive right at the time it lodged its development application under clause 33 of SEPP 53, which right was protected from subsequent amendment by section 34(4)(b) of the Environmental Planning and Assessment Act 1979. Amendment No 10, and its new clause 44, could not retrospectively remove that vested right. The orders of the Land and Environment Court dismissing the application and ordering costs were therefore set aside.

Jurisdiction
Australia
Judgment Date
25 November 2004
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed
Legal Topics
['environmental Planning Instruments' 'development Application Rights' 'vested Rights' 'statutory Interpretation']
['environmental Law' 'administrative Law'] ['environmental Planning Instruments' 'development Application Rights' 'vested Rights' 'statutory Interpretation']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ["Whether Amendment No 10 to State Environmental Planning Policy No 53 – Metropolitan Residential Development could apply to preclude consent to a development application lodged before the amendment's commencement" 'Whether the applicant acquired a vested right upon lodgment of the development application such that s 34(4)(b) of the Environmental Planning and Assessment Act 1979 protected it from subsequent legislative amendments']

Ratio Decidendi

The appellant acquired a substantive right at the time it lodged its development application under clause 33 of SEPP 53, which right was protected from subsequent amendment by section 34(4)(b) of the Environmental Planning and Assessment Act 1979. Amendment No 10, and its new clause 44, could not retrospectively remove that vested right. The orders of the Land and Environment Court dismissing the application and ordering costs were therefore set aside.

Court Disposition

Appeal allowed

Orders

  • ["Set aside the orders that the applicant's Class 4 application is dismissed and that the applicant pay the respondents' costs." 'Declare that the provisions of State Environmental Planning Policy No 53 – Metropolitan Residential Development inserted by Amendment No 10 do not apply to or in respect of the...