The Hills Shire Council v Drenovac [2022] NSWLEC 139

The Hills Shire Council v Drenovac [2022] NSWLEC 139

While the proper construction of relevant planning instruments dictated that the minimum lot size for the terrace housing development was 1800m2, an error of law by the certifier on this point was within the certifier’s jurisdiction and not reviewable as a jurisdictional error. The proceedings, having been brought outside the statutory three month period under s 4.59 of the EP&A Act and not falling within any exception, were time-barred. Even if reviewable, discretionary considerations would warrant refusal of relief.

Parties
Applicant: The Hills Shire Council; First Respondent: Milan Drenovac; Second Respondent: Christopher Wahbe; Third Respondent: Amelia Clare McKey; Fourth Respondent: Benjamin Joel Hynes; Fifth Respondent: Kristy Elyse Dimitroff; Sixth Respondent: James Christopher Dimitroff
Jurisdiction
Australia
Judgment Date
25 November 2022
Procedural Posture
Judicial Review / Final Merits Judgment After Hearing
Outcome
Applicant’s Amended Summons dismissed; costs to Respondents
Legal Topics
Complying Development Certificates, Minimum Lot Size, Judicial Review, Local Environmental Plans, Time Limitations for Challenges
Administrative Law Planning and Environment Law Complying Development Certificates Minimum Lot Size Judicial Review Local Environmental Plans Time Limitations for Challenges

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Parties

The Hills Shire Council

Applicant

Milan Drenovac

First Respondent

Christopher Wahbe

Second Respondent

Amelia Clare McKey

Third Respondent

Benjamin Joel Hynes

Fourth Respondent

Kristy Elyse Dimitroff

Fifth Respondent

James Christopher Dimitroff

Sixth Respondent

Procedural Posture

Judicial Review / Final Merits Judgment After Hearing

Legal Issues

  1. 1 What is the minimum site area required for the terrace housing development to be complying development under the State Environmental Planning Policy (Exempt & Complying Development Codes) 2008?
  2. 2 Did the certifier err in the construction of the Code SEPP such that the Complying Development Certificate is invalid?
  3. 3 Were proceedings brought within time under s 4.59 of the Environmental Planning and Assessment Act 1979 (NSW)?

Ratio Decidendi

While the proper construction of relevant planning instruments dictated that the minimum lot size for the terrace housing development was 1800m2, an error of law by the certifier on this point was within the certifier’s jurisdiction and not reviewable as a jurisdictional error. The proceedings, having been brought outside the statutory three month period under s 4.59 of the EP&A Act and not falling within any exception, were time-barred. Even if reviewable, discretionary considerations would warrant refusal of relief.

Court Disposition

Applicant’s Amended Summons dismissed; costs to Respondents

Orders

  • The Amended Summons filed on 1 April 2022 is dismissed.
  • The Council is to pay the Respondents’ costs.