Currey v Hargraves & (2) Ors [2007] NSWLEC 471

Currey v Hargraves & (2) Ors [2007] NSWLEC 471

Both development consents withstand challenge: first, because s 101 of EP&A Act precludes challenge after public notice, and neither lack of delegation nor failure to meet clause 36 are inviolable restraints; second, because council was entitled to be satisfied that clause 36 was met, consideration of view loss occurred, and failure to impose a condition was not manifestly unreasonable.

Parties
Applicant: William Phillip Currey; First Respondent: John Charles Hargraves; Second Respondent: Leonie Jean Hargraves; Third Respondent: Wyong Shire Council
Jurisdiction
Australia
Judgment Date
03 August 2007
Procedural Posture
Judicial Review / Final Judgment
Outcome
Application dismissed
Legal Topics
Heritage Item, Development Consent, Judicial Review, Loss of View, Delegated Authority, Construction of Planning Instrument, Privative Clause, Manifest Unreasonableness
Planning and Environmental Law Administrative Law Heritage Item Development Consent Judicial Review Loss of View Delegated Authority Construction of Planning Instrument +2 more

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Parties

William Phillip Currey

Applicant

John Charles Hargraves

First Respondent

Leonie Jean Hargraves

Second Respondent

Wyong Shire Council

Third Respondent

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether development consents are invalid due to absence of delegated authority and failure to meet planning instrument requirements
  2. 2 Whether council failed to consider loss of applicant's view and impose reasonable conditions
  3. 3 Application of privative clause and Hickman principle to challenge validity of consents

Ratio Decidendi

Both development consents withstand challenge: first, because s 101 of EP&A Act precludes challenge after public notice, and neither lack of delegation nor failure to meet clause 36 are inviolable restraints; second, because council was entitled to be satisfied that clause 36 was met, consideration of view loss occurred, and failure to impose a condition was not manifestly unreasonable.

Court Disposition

Application dismissed

Orders

  • The application is dismissed.
  • The applicant must pay the respondents' costs, unless a notice of motion for some other order as to costs is filed and served within fourteen days.