Woolworths Limited v Wyong Shire Council & Ors [No 2] [2005] NSWLEC 607

Woolworths Limited v Wyong Shire Council & Ors [No 2] [2005] NSWLEC 607

The failure to obtain adequate information about noise impacts of overnight supermarket operation was a discrete matter relating to whether 24 hour operation should be permitted or limited by conditions, not a matter fundamental to whether the development consent should be granted. It could therefore be characterised as a step preliminary to the grant of consent, making it appropriate under s 25B to suspend the consent pending a noise report rather than declare the consent invalid.

Jurisdiction
Australia
Judgment Date
22 November 2005
Procedural Posture
Class 4 Proceedings / Consideration, After Findings in Woolworths Limited V Wyong Shire Council & Ors [2005] NSWLEC 400, of Whether to Declare the Development Consent Invalid or Make Orders Under S 25 B of the Land and Environment Court Act 1979
Outcome
The Court determined that an order under s 25B suspending the operation of the development consent should be made rather than a declaration of invalidity, with draft orders to be finalised after party comment.
Legal Topics
['development Consent Invalidity' 'suspension of Development Consent' 'orders Under S 25 B of the Land and Environment Court Act 1979' 'failure to Consider Acoustic Impacts' 's 79 C Consideration' '24 Hour Supermarket Operation']
['environmental Planning and Assessment' 'land and Environment Court Procedure' 'administrative Law'] ['development Consent Invalidity' 'suspension of Development Consent' 'orders Under S 25 B of the Land and Environment Court Act 1979' 'failure to Consider Acoustic Impacts' 's 79 C Consideration' '24 Hour Supermarket Operation']

Case Brief

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Procedural Posture

Class 4 Proceedings / Consideration, After Findings in Woolworths Limited V Wyong Shire Council & Ors [2005] NSWLEC 400, of Whether to Declare the Development Consent Invalid or Make Orders Under S 25 B of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the Court should declare the development consent invalid because the Council failed to consider acoustic impacts of the 24 hour supermarket operation.' 'Whether the failure to obtain or consider adequate noise information was a step preliminary to the granting of development consent so that s 25B of the Land and Environment Court Act 1979 could be used.' 'Whether the appropriate order was suspension of the consent pending a noise report rather than invalidity.']

Ratio Decidendi

The failure to obtain adequate information about noise impacts of overnight supermarket operation was a discrete matter relating to whether 24 hour operation should be permitted or limited by conditions, not a matter fundamental to whether the development consent should be granted. It could therefore be characterised as a step preliminary to the grant of consent, making it appropriate under s 25B to suspend the consent pending a noise report rather than declare the consent invalid.

Court Disposition

The Court determined that an order under s 25B suspending the operation of the development consent should be made rather than a declaration of invalidity, with draft orders to be finalised after party comment.

Orders

  • ['The operation of the consent is to be suspended pending the obtaining by the Council of a noise report about overnight operations.' 'After considering the noise report, the Council may decide whether to confirm its original decision to allow 24 hour operation or regrant development consent with different operating...