Charara v Ku-ring-gai Council [2019] NSWLEC 183

Charara v Ku-ring-gai Council [2019] NSWLEC 183

The Court held that the Council's attempt, in Class 1 proceedings, to treat modified development consents and construction certificates as a nullity constituted a collateral challenge to their validity, which can only properly be determined in Class 4 proceedings. As such, the Council's statement of facts and...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
28 November 2019
Procedural Posture
Class 1 Statutory Appeal / Interlocutory Decision on Notice of Motion to Strike Out Council's Statement of Facts and Contentions in Reply
Outcome
Applicant's notice of motion to strike out Council's statement of facts and contentions in reply granted (with two-week stay pending Council's decision on commencing Class 4 proceedings); no final disposition on the substantive stop work order appeal.
Legal Topics
['validity of Development Consents' 'jurisdiction of Class 1 and Class 4 Proceedings' 'stop Work Orders' 'striking Out Pleadings' 'estoppel Against Public Authorities' 'revocation and Modification of Development Consents']
['administrative Law' 'planning and Environment Law' 'civil Procedure'] ['validity of Development Consents' 'jurisdiction of Class 1 and Class 4 Proceedings' 'stop Work Orders' 'striking Out Pleadings' 'estoppel Against Public Authorities' 'revocation and Modification of Development Consents']

Source-derived case record

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Procedural Posture

Class 1 Statutory Appeal / Interlocutory Decision on Notice of Motion to Strike Out Council's Statement of Facts and Contentions in Reply

Legal Issues

  1. 1 ['Whether Ku-ring-gai Council can, in Class 1 proceedings, rely on the asserted invalidity or nullity of modified development consents and construction certificates issued to the applicant;' 'Whether issues of alleged invalidity/nullity of development consents and construction certificates must be determined in Class 4 proceedings;' "Whether Council's contentions in reply should be struck out in Class 1 proceedings as disclosing no reasonable cause of action or being an abuse of process"]

Ratio Decidendi

The Court held that the Council's attempt, in Class 1 proceedings, to treat modified development consents and construction certificates as a nullity constituted a collateral challenge to their validity, which can only properly be determined in Class 4 proceedings. As such, the Council's statement of facts and contentions in reply did not disclose a reasonable cause of action and should be struck out under r 14.28 of the UCPR. Only the Court may declare an administrative instrument invalid; until such a declaration, consents and certificates remain effective.

Court Disposition

Applicant's notice of motion to strike out Council's statement of facts and contentions in reply granted (with two-week stay pending Council's decision on commencing Class 4 proceedings); no final disposition on the substantive stop work order appeal.

Orders

  • ["Council's statement of facts and contentions in reply in Class 1 proceedings to be struck out (after two weeks, unless further orders made)" 'Matter listed for further directions in two weeks to determine further conduct of proceedings']