The Dubler Group Pty Ltd v Ku-ring-gai Municipal Council & Anor [2004] NSWLEC 305

The Dubler Group Pty Ltd v Ku-ring-gai Municipal Council & Anor [2004] NSWLEC 305

Clause 33 of SEPP 53 applied to development applications lodged and amendments made after commencement of the SEPP, but it did not confer on the Applicant an accrued right or privilege within s 34(4)(b) of the EP&A Act at the time the development application was lodged. At most, the Applicant had a hope or expectation that SEPP 53 would continue in its existing form. The Minister could therefore make cl 44 to suspend cl 33 and apply Amendment No 10 to the Applicant's undetermined application, making the development prohibited. The Minister's opinion that Amendment No 10 concerned matters of significance for environmental planning for the State was not unreasonable in the Wednesbury sense,...

Jurisdiction
Australia
Judgment Date
02 July 2004
Procedural Posture
Class 4 Judicial Review Proceedings / Final Judgment on Application for Declarations Concerning the Operation and Validity of State Environmental Planning Policy 53 Metropolitan Residential Development (amendment No 10)
Outcome
The Class 4 application was dismissed and the Applicant was ordered to pay the Respondents' costs, with the costs order not to come into effect for 14 days.
Legal Topics
['state Environmental Planning Policy Amendment' 'development Applications' 'accrued Right or Privilege' 'transitional Provisions' 'wednesbury Unreasonableness' 'state Significance for Environmental Planning' 'bush Fire Evacuation Risk']
['environmental Planning and Assessment' 'administrative Law' 'judicial Review'] ['state Environmental Planning Policy Amendment' 'development Applications' 'accrued Right or Privilege' 'transitional Provisions' 'wednesbury Unreasonableness' 'state Significance for Environmental Planning' 'bush Fire Evacuation Risk']

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Procedural Posture

Class 4 Judicial Review Proceedings / Final Judgment on Application for Declarations Concerning the Operation and Validity of State Environmental Planning Policy 53 Metropolitan Residential Development (amendment No 10)

Legal Issues

  1. 1 ["Whether s 34(4) of the Environmental Planning and Assessment Act 1979 preserved a right or privilege said to arise under cl 33 of State Environmental Planning Policy 53 - Metropolitan Residential Development so that Amendment No 10 could not apply to the Applicant's development application." 'Whether cl 44 of SEPP 53 validly suspended the operation of cl 33 for development applications made but not finally determined before commencement of Amendment No 10.' "Whether the Minister's opinion under s 39(3) of the Environmental Planning and Assessment Act 1979 that Amendment No 10 related to matters of significance for environmental planning for the State was unreasonable in the Wednesbury sense."]

Ratio Decidendi

Clause 33 of SEPP 53 applied to development applications lodged and amendments made after commencement of the SEPP, but it did not confer on the Applicant an accrued right or privilege within s 34(4)(b) of the EP&A Act at the time the development application was lodged. At most, the Applicant had a hope or expectation that SEPP 53 would continue in its existing form. The Minister could therefore make cl 44 to suspend cl 33 and apply Amendment No 10 to the Applicant's undetermined application, making the development prohibited. The Minister's opinion that Amendment No 10 concerned matters of significance for environmental planning for the State was not unreasonable in the Wednesbury sense,...

Court Disposition

The Class 4 application was dismissed and the Applicant was ordered to pay the Respondents' costs, with the costs order not to come into effect for 14 days.

Orders

  • ["The Applicant's Class 4 application is dismissed." "The Applicant is to pay the Respondents' costs. This order does not come into effect for 14 days." 'Exhibits may be returned.']