Warriewood Properties Pty Limited v Forbes Shire Council & Anor [2008] NSWLEC 222

Warriewood Properties Pty Limited v Forbes Shire Council & Anor [2008] NSWLEC 222

The development consent was void and of no effect because the Council failed to consider mandatory prescriptive controls about fencing on flood liable land under DCP 6, contrary to cl 10(2) of the Forbes Local Environmental Plan 1986.

Parties
Applicant: Warriewood Properties Pty Limited; First Respondent: Forbes Shire Council; Second Respondent: Walt Coulston
Jurisdiction
Australia
Judgment Date
18 July 2008
Procedural Posture
Judicial Review / Final Judgment (ex Tempore)
Outcome
Development consent declared void and of no effect; costs reserved; further directions given on costs; hearing date vacated.
Legal Topics
Invalidity of Development Consent, Flood Liable Land, Local Environmental Plan, Development Control Plan, Judicial Review
Planning and Environment Invalidity of Development Consent Flood Liable Land Local Environmental Plan Development Control Plan Judicial Review

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Parties

Warriewood Properties Pty Limited

Applicant

Forbes Shire Council

First Respondent

Walt Coulston

Second Respondent

Procedural Posture

Judicial Review / Final Judgment (ex Tempore)

Legal Issues

  1. 1 Whether development consent was invalid as Council did not consider all relevant statutory and planning controls regarding flood liable land

Ratio Decidendi

The development consent was void and of no effect because the Council failed to consider mandatory prescriptive controls about fencing on flood liable land under DCP 6, contrary to cl 10(2) of the Forbes Local Environmental Plan 1986.

Court Disposition

Development consent declared void and of no effect; costs reserved; further directions given on costs; hearing date vacated.

Orders

  • Declares that development consent dated 21 February 2008 granted by the first respondent to the second respondent in respect of development application 2008/0048 for the demolition of existing buildings and construction of supermarket, associated signage and car parking is void and of no effect.
  • Reserves costs.