Benson v Tattersall Lander Pty Ltd [2018] NSWLEC 121

Benson v Tattersall Lander Pty Ltd [2018] NSWLEC 121

The development consent was invalid because the Council failed to consider mandatory matters relevant to s 79C EPA Act, particularly impacts of chicken farming (odour, traffic, environmental) and failed to properly follow required procedures under s 372 Local Government Act 1993 when altering resolutions. The consent cannot stand.

Parties
Applicant: Wayne Benson; First Respondent: Tattersall Lander Pty Ltd; Second Respondent: Wollondilly Shire Council
Jurisdiction
Australia
Judgment Date
24 August 2018
Procedural Posture
Judicial Review / Final Judgment
Outcome
Development consent declared invalid and of no effect
Legal Topics
Development Consent, Judicial Review, Mandatory Considerations, Procedural Invalidity, Unreasonableness, Uncertainty of Consent
Planning and Environment Law Local Government Law Development Consent Judicial Review Mandatory Considerations Procedural Invalidity Unreasonableness Uncertainty of Consent

Case Brief

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Parties

Wayne Benson

Applicant

Tattersall Lander Pty Ltd

First Respondent

Wollondilly Shire Council

Second Respondent

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether Wollondilly Shire Council failed to consider mandatory relevant matters under s 79C Environmental Planning and Assessment Act 1979 when issuing development consent
  2. 2 Whether Council's decision to permit farming of chickens (in addition to turkeys) was manifestly unreasonable or without plausible justification
  3. 3 Whether the consent is invalid for uncertainty

Ratio Decidendi

The development consent was invalid because the Council failed to consider mandatory matters relevant to s 79C EPA Act, particularly impacts of chicken farming (odour, traffic, environmental) and failed to properly follow required procedures under s 372 Local Government Act 1993 when altering resolutions. The consent cannot stand.

Court Disposition

Development consent declared invalid and of no effect

Orders

  • The Court declares that any development consent purportedly granted by Wollondilly Shire Council to DA 010.2015.00000316.001, in October/November 2016, for the extension of existing poultry sheds 4, 5 and 6 and construction of two additional sheds, is invalid and of no effect.
  • The First Respondent is restrained from carrying out development in accordance with any such purported Consent.