Reported Decision: 153 LGERA 450
New South Wales
Court of Appeal
CITATION: Belmorgan Property Development Pty Ltd v GPT Re Ltd & Anor [2007] NSWCA 171
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 1 June 2007
JUDGMENT DATE:
18 July 2007JUDGMENT OF: Beazley JA; Tobias JA; Basten JA DECISION: Appeal dismissed with costs CATCHWORDS: DEVELOPMENT CONSENT – Validity – Delegation of Council powers– Power to determine a development application – Whether a delegation of power to approve a particular development application is a valid delegation – Whether a delegation to approve a particular development application fettered the delegate’s previously delegated power to determine development applications with respect to that particular application – Local Government Act 1993 s 377 – Environmental Planning and Assessment Act 1979 ss 79C(1), 80(1) LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Interpretation Act 1987
Local Government Act 1993
Local Government (Meetings) Regulation 1999CASES CITED: Attorney-General ex rel Goddard v North Sydney Municipal Council [1971] 2 NSWLR 373
Attorney-General (NSW); ex rel McKellar v The Commonwealth (1977) 139 CLR 527
Australian National Airways v The Commonwealth (1945) 71 CLR 29
Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257; [2004] NSWLEC 401
Everall v Kuringai Municipal Council (1991) 72 LGRA 369
Fuller v Bellingen Shire Council [1988] NSWLEC 40
GPT Re Ltd v Wollongong City Council (2006) 151 LGERA 116; [ 2006 ] NSWLEC 303 The Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31
Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1
Singh v Minister of Immigration, Local Government & Ethnic Affairs (1989) 90 ALR 397
Weal v Bathurst City Council [1999] NSWLEC 132
Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88PARTIES: Belmorgan Property Development Pty Ltd
GPT Re Ltd
Wollongong City CouncilFILE NUMBER(S): CA 40855/06 COUNSEL: A: S Austin QC / S Balfoutis
R: S Gageler SC / S PritchardSOLICITORS: A: Norman Waterhouse, Sydney
1R: Allens Arthur Robinson, Sydney
2R: DLA Phillips FoxLOWER COURT JURISDICTION: Land & Environment Court LOWER COURT FILE NUMBER(S): LEC 41279/05 LOWER COURT JUDICIAL OFFICER: Biscoe J LOWER COURT DATE OF DECISION: 9 June 2006 LOWER COURT MEDIUM NEUTRAL CITATION: GPT Re Limited v wollongong City Council & Anor [2006] NSWLEC 303
CA 40855/06
LEC 41279/05Wednesday 18 July 2007BEAZLEY JA
TOBIAS JA
BASTEN JA
BELMORGAN PROPERTY DEVELOPMENT PTY LTD v GPT RE LTD & ANOR
Judgment
1 BEAZLEY JA: I agree with Tobias JA. I also agree with the additional reasons of Basten JA which, as his Honour observes, are not inconsistent with the reasons of Tobias JA.
2 TOBIAS JA: On 9 June 2006 Biscoe J of the Land and Environment Court held that Development Consent No. 2004/1565 dated 1 August 2005 (the Consent) granted by the second respondent, Wollongong City Council (the Council), to the…
Keep reading for free
Create a free CaseChat account to read Belmorgan Property Development Pty Ltd v GPT Re Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2007] NSWCA 171
- Decision Date
CaseChat Overview and Summary
Belmorgan Property Development Pty Ltd (Belmorgan) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning the validity of a development consent granted by the Sydney Harbour Foreshore Authority (the Authority). The dispute centred on whether the Authority had validly delegated its power to determine a specific development application made by Belmorgan.
The central legal issues before the Court of Appeal were whether the Authority had the power to delegate its function of determining a particular development application, and if so, whether the purported delegation fettered the Authority's previously delegated power to determine development applications generally. The Court also considered the interplay between section 377 of the *Local Government Act 1993* (NSW) and sections 79C(1) and 80(1) of the *Environmental Planning and Assessment Act 1979* (NSW) in relation to the delegation of such powers.
The Court of Appeal affirmed the primary judge's reasoning, holding that the Authority possessed the power to delegate its functions under section 377 of the *Local Government Act 1993*. However, the Court found that the specific delegation in question, which purported to approve Belmorgan's development application, was invalid. This was because the delegation sought to approve a particular development application, thereby fettering the Authority's broader delegated power to determine development applications. The Court emphasised that a delegation of power must not be so specific as to amount to an exercise of the power itself, nor should it fetter the exercise of the delegated power in a manner inconsistent with the original delegation.
The appeal was dismissed, and Belmorgan was ordered to pay the costs of the appeal.
The central legal issues before the Court of Appeal were whether the Authority had the power to delegate its function of determining a particular development application, and if so, whether the purported delegation fettered the Authority's previously delegated power to determine development applications generally. The Court also considered the interplay between section 377 of the *Local Government Act 1993* (NSW) and sections 79C(1) and 80(1) of the *Environmental Planning and Assessment Act 1979* (NSW) in relation to the delegation of such powers.
The Court of Appeal affirmed the primary judge's reasoning, holding that the Authority possessed the power to delegate its functions under section 377 of the *Local Government Act 1993*. However, the Court found that the specific delegation in question, which purported to approve Belmorgan's development application, was invalid. This was because the delegation sought to approve a particular development application, thereby fettering the Authority's broader delegated power to determine development applications. The Court emphasised that a delegation of power must not be so specific as to amount to an exercise of the power itself, nor should it fetter the exercise of the delegated power in a manner inconsistent with the original delegation.
The appeal was dismissed, and Belmorgan was ordered to pay the costs of the appeal.
Orders
Orders of the court
Appeal dismissed with costs
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.