Corowa v Geographe Point Pty Ltd

Case [2007] NSWLEC 121
Reported Decision: 154 LGERA 117

Land and Environment Court


of New South Wales


CITATION: Corowa v Geographe Point Pty Ltd & Anor [2007] NSWLEC 121
PARTIES:

APPLICANT
Robert Corowa

FIRST RESPONDENT
Geographe Point Pty Ltd

SECOND RESPONDENT
Tweed Shire Council
FILE NUMBER(S): 41042 of 2006
CORAM: Jagot J
KEY ISSUES: Judicial Review :- whether development application required to be accompanied by a species impact statement - failure to consider presence of endangered ecological community on land - operation of s 101 of Environmental Planning and Assessment Act 1979 - privative clause - validity of construction certificate - inconsistency with development consent - manifest unreasonableness - breach of development consent - clearing of endangered ecological community
LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Pt 4A, s 4(1), s 5A, s 76A(1)(b), s 78A(8)(b), s 79C(1), s 80(12), s 81A(5), s 94, s 101, s 109C(1)(b), s 112, s 124(1)
Environmental Planning and Assessment Regulation 2000 cl 145(2)
Interpretation Act 1987 s 30
Land and Environment Court Act 1979 s 25C
National Parks and Wildlife Act 1974 s 118A(2), s 118D(1)
Rural Fires Act 1997 s 100B
State Environmental Planning Policy No 14—Coastal Wetlands
Threatened Species Conservation Act 1995 s 4(1), s 12, s 24
CASES CITED: AGC (Advances) Ltd v Roads and Traffic Authority of NSW (1993) 30 NSWLR 391;
Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1;
BT Goldsmith Planning Services Pty Limited v Blacktown City Council [2005] NSWLEC 210;
Carstens v Pittwater Council (1999) 111 LGERA 1;
Currey v Sutherland Shire Council (2003) 129 LGERA 223;
Helman v Byron Shire Council and Another (1995) 87 LGERA 349;
Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277;
Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207;
Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695;
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705;
Marnal Pty Ltd v Cessnock City Council (1989) 68 LGRA 135;
Maule v Liporoni and Another (2002) 122 LGERA 140;
Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24;
Minister for Local Government and Another v South Sydney City Council (2002) 55 NSWLR 381;
Oshlack v Richmond River Shire Council and Another (1993) 82 LGERA 222;
O’Toole v Charles David Proprietary Limited (1990) 171 CLR 232;
Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319;
Plumb v Penrith City Council and Anor [2002] NSWLEC 223;
Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355;
R v Hickman and Others; Ex parte Fox and Clinton (1945) 70 CLR 598;
R v Murray and Others; Ex Parte Proctor and Others (1949) 77 CLR 387;
Rundle v Tweed Shire Council and Another (1989) 68 LGRA 308;
Ryde Municipal Council v The Royal Ryde Homes and Another (1970) 19 LGRA 321;
Smyth v…

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Details
AGLC
Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121
Case
[2007] NSWLEC 121
Decision Date

CaseChat Overview and Summary

The case of Corowa v Geographe Point Pty Ltd was before the Land and Environment Court of New South Wales, where Mr Corowa sought to challenge the validity of a development consent and construction certificate issued to Geographe Point Pty Ltd, as well as an allegation of clearing in breach of both the development consent and the New South Wales Native Vegetation Act 2003. Mr Corowa's primary contention was that the consent and certificate were obtained by misrepresentation and that the clearing conducted by Geographe Point Pty Ltd had contravened the conditions set out in the consent and the relevant statutory provisions.

The court was tasked with determining whether the development consent and construction certificate were obtained through fraudulent means and whether the clearing activities undertaken by Geographe Point Pty Ltd breached the terms of the consent and the New South Wales Native Vegetation Act 2003. Additionally, the court needed to consider whether the clearing activities had occurred and if they did, whether they were in breach of the relevant laws. The court had to examine the evidence presented regarding the process by which the consent and certificate were obtained and whether there were any misleading statements or omissions that would render them invalid.

The Land and Environment Court found that Mr Corowa had failed to establish that the development consent and construction certificate were obtained through fraudulent means. The court determined that the evidence did not support the claim that there were any misrepresentations made to the consent authority that would invalidate the consent and certificate. Furthermore, the court concluded that the clearing activities carried out by Geographe Point Pty Ltd did not contravene the conditions of the development consent or the New South Wales Native Vegetation Act 2003. The court found that the clearing activities were in compliance with the requirements of the consent and the statutory provisions. Consequently, Mr Corowa's claims were dismissed, and the Class 4 application was ordered to be dismissed. The court noted that costs may be argued in accordance with the relevant provisions of the law.

Orders

Orders of the court

Mr Corowa's claims that the development consent and construction certificate are invalid and that Geographe Point has carried out clearing in breach of the development consent and NPW Act fail. The Class 4 application should be dismissed. Costs may be argued.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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