Centro Properties Limited v Warringah Council [No 2] - [2003] NSWLEC 257

Set aside by Appeal: [2005] NSWCA 403 - appeal allowed

Land and Environment Court

of New South Wales

CITATION: Centro Properties Limited v Warringah Council & Anor [No 2] [2003] NSWLEC 257 revised - 3/11/2003

PARTIES:
APPLICANT
Centro Properties Ltd
FIRST RESPONDENT
Warringah Council
SECOND RESPONDENT
Cornerstone Property Group Pty Ltd

FILE NUMBER(S): 40045 of 2003

CORAM: Pain J

KEY ISSUES: Construction and Interpretation :- whether an order under Pt 3 Div 3 of the Land and Environment Court Act 1979 should be made - whether Pt 3 Div 3 of the Court Act is confined by s 25A so as only to apply to steps preliminary to the granting of a development consent - whether the consideration by the Council of matters under s 79C of the Environmental Planning and Assessment Act 1979 are steps preliminary to the granting of a development consent - whether the Court could specify "terms compliance with which will validate the consent" under s 25B of the Court Act

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C, s 80, s 103, s 104
Land and Environment Court Act 1979 s 25A, s 25B, s 25C

CASES CITED: BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274;
Centro Properties Limited v Warringah Council & Anor [2003] NSWLEC 145;
Donnelly v Capricornia Prospecting Pty Ltd [2001] NSWLEC 225;
Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84;
Mison v Randwick Municipal Council (1991) 23 NSWLR 735;
Noble v Cowra Shire Council [2001] NSWLEC 149

DATES OF HEARING: 05/08/2003

DATE OF JUDGMENT:
10/31/2003

LEGAL REPRESENTATIVES:

APPLICANT
Ms J Jagot (barrister)
SOLICITORS
Mallesons Stephen Jacques
FIRST RESPONDENT
Mr SB Austin (barrister)
SOLICITORS
Wilshire Webb
SECOND RESPONDENT
Mr J Ayling SC
with Mr C McEwen (barrister)
SOLICITORS
Staunton Beattie

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40045 of 2003

Pain J

31 October 2003

CENTRO PROPERTIES LIMITED

Applicant

WARRINGAH COUNCIL

First Respondent

CORNERSTONE PROPERTY GROUP PTY LTD

Second Respondent

Judgment No 2

Introduction

1. In my judgment dated 2 July 2003 (Centro Properties Limited v Warringah Council & Anor [2003] NSWLEC 145) I found that Warringah Council (the Council) had failed to take into consideration the likely economic impact of the Second Respondent's proposed development in the locality, contrary to the requirements of s 79C(1)(b) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) (par 134 - 136 of the judgment). That finding arose from my determination that there was no material before the Council relevant to such a consideration. As I noted, such a failure invalidates the development consent. At the request of the Respondents I did not make final orders, but allowed an opportunity for the Respondents to make submissions as to how my discretion to grant relief ought to be exercised.

2. The Second Respondent and the Council now submit that an order under Pt 3 Div 3, in particular s 25B(1)(a) and (b), of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWLEC 257
Decision Date: 10/31/2003

CaseChat Overview and Summary

The case of Centro Properties Limited v Warringah Council [No 2] involved a dispute over the validity of a development consent granted by Warringah Council to Cornerstone Property Group Pty Ltd, with Centro Properties Ltd as the applicant. The primary issue was whether the Council's failure to consider the likely economic impact of the proposed development, as required by the Environmental Planning and Assessment Act 1979 (EP&A Act), rendered the development consent invalid. Additionally, the court had to determine whether certain orders under the Land and Environment Court Act 1979 could be made to validate the consent instead of declaring it invalid. The case raised three main legal questions: whether s 25A of the Court Act applied, whether s 25B could apply, and whether general discretionary matters precluded the making of such orders.

The court found that the consideration of economic impacts under s 79C of the EP&A Act was not a step preliminary to the granting of development consent but part of the decision-making process itself. Therefore, s 25A of the Court Act, which applies to steps preliminary to the granting of consent, did not extend to this situation. The court also held that it was not possible to specify terms under s 25B of the Court Act that would validate the consent in a manner compliant with the EP&A Act. The proposed orders would have required the Council to consider economic impacts separately from other relevant matters, which the court found would not satisfy the mandatory requirements of s 79C.

Consequently, the court declared the development consent invalid and of no effect. It also restrained the Second Respondent from acting upon the consent. The court reserved the question of costs for later determination. This decision underscored the importance of adhering to statutory requirements in the development consent process and highlighted the limitations of the court's ability to validate consent through orders when those statutory requirements are not met.

Orders