Davis v Dodevski - [2021] NSWLEC 93

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Davis v Dodevski [2021] NSWLEC 93
Hearing dates: 12 July 2021
Date of orders: 27 August 2021
Decision date: 27 August 2021
Jurisdiction: Class 4
Before: Pain J
Decision:
(1) The Court declares that development consent for development application 2020/090 for the construction of a dwelling house on Lot 195 in DP 755564 is invalid and of no effect.
(2) The Court orders that costs and consequential orders are reserved.

Catchwords:
ADMINISTRATIVE LAW – judicial review – failure of council to comply with precondition in local environmental plan in granting development consent for a dwelling on rural zoned land less than 100 ha in area an error of law – no entitlement to build a dwelling on under sized lot in rural landscape zone –development consent invalid

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW) ss 4.15, 4.16, 4.68, 8.3, 9.45
Local Government Act 1993 (NSW) ss 22, 731
Nambucca Local Environmental Plan 1986 cl 16
Nambucca Local Environmental Plan 1995 cll 5, 14
Nambucca Local Environmental Plan 2010 cll 2.3, 4.2A, Land Use Table
Penrith Local Environmental Plan No 231
State Environmental Planning Policy No 4 – Development Without Consent
Sutherland Local Environmental Plan 1983 cl 19
Uniform Civil Procedure Rules 2005 (NSW) r 59.10
Wollongong Local Environmental Plan 1990
Wollongong Local Environmental Plan 2009
Yarrowlumla Local Environmental Plan 2002 cl 22
State Environmental Planning Policy No 1 – Development Standards

Cases Cited:
Bungendore Residents Group Inc v Palerang Council (No 3) [2007] NSWLEC 251
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5
Currey v Sutherland Shire Council (1998) 100 LGERA 365
Franklins Ltd v Penrith City Council [1999] NSWCA 134
Lloyd v Wollongong City Council [2015] NSWLEC 146
Lomman v Windbelt Pty Ltd (2018) 237 LGERA 1; [2018] NSWLEC 29
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422

Category: Principal judgment
Parties: Karen Davis (Applicant)
Igor Dodevski (First Respondent)
Jyoti Elanor Fraya Durrant (Second Respondent)
Nambucca Valley Council (Third Respondent)
Representation:
COUNSEL:
S Berveling (Applicant)
N/A (First to Third Respondents)
SOLICITORS:
Savage and Love (Applicant)
Fishburn Watson O’Brien (First and Second Respondents)
Marsdens (Third Respondent)

File Number(s): 21/37037

Judgment

The Applicant seeks a declaration in these judicial review proceedings that development consent for development application 2020/090 (DA 2020/090) granted by the Third Respondent (the Council) to the First and Second Respondents is invalid and of no effect. The Applicant also seeks an order restraining the First and Second Respondents from carrying out development in accordance with the development consent. The proceedings are brought pursuant to s 9.45 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). All three respondents have filed submitting appearances save as to costs so that there is no contradictor in the proceedings. The Applicant bears the onus of demonstrating why the declaration it seeks ought to be made.
The Applicant advises that…

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.

Continue reading Davis v Dodevski

Details

AGLC: Davis v Dodevski [2021] NSWLEC 93
Case: [2021] NSWLEC 93
Decision Date: 27 August 2021

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Davis v Dodevski was heard, where the plaintiff, Davis, sought to challenge the validity of a development consent granted for a dwelling house on Lot 195 in DP 755564. The defendant, Dodevski, was the recipient of the development consent and intended to construct the dwelling on the specified lot. The central dispute centred around the procedural validity of the consent granted by the relevant planning authority.

The primary legal issues before the court involved whether the planning authority had followed the requisite procedures under the relevant planning legislation when granting the development consent. Specifically, the court needed to determine whether the authority had provided adequate notice to neighbouring property owners, as required by statute, and whether the consent was therefore lawful. The court also had to consider whether the failure to provide proper notice constituted a significant procedural error that rendered the consent invalid.

In its decision, the court found that the planning authority had not provided the requisite notice to neighbouring property owners, thereby breaching statutory requirements. The court held that this procedural flaw was significant and rendered the development consent invalid. The court emphasised the importance of procedural fairness in planning decisions and the necessity for authorities to strictly adhere to statutory mandates. As a result, the court declared that the development consent was invalid and of no effect. The court reserved the matter of costs and consequential orders for further consideration.

Orders

Orders of the court

(1) The Court declares that development consent for development application 2020/090 for the construction of a dwelling house on Lot 195 in DP 755564 is invalid and of no effect.

(2) The Court orders that costs and consequential orders are reserved.

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.

Medium Neutral Citation:	Davis v Dodevski [2021] NSWLEC 93
Hearing dates:	12 July 2021
Date of orders:	27 August 2021
Decision date:	27 August 2021
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1) The Court declares that development consent for development application 2020/090 for the construction of a dwelling house on Lot 195 in DP 755564 is invalid and of no effect. (2) The Court orders that costs and consequential orders are reserved.
Catchwords:	ADMINISTRATIVE LAW – judicial review – failure of council to comply with precondition in local environmental plan in granting development consent for a dwelling on rural zoned land less than 100 ha in area an error of law – no entitlement to build a dwelling on under sized lot in rural landscape zone –development consent invalid
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) ss 4.15, 4.16, 4.68, 8.3, 9.45 Local Government Act 1993 (NSW) ss 22, 731 Nambucca Local Environmental Plan 1986 cl 16 Nambucca Local Environmental Plan 1995 cll 5, 14 Nambucca Local Environmental Plan 2010 cll 2.3, 4.2A, Land Use Table Penrith Local Environmental Plan No 231 State Environmental Planning Policy No 4 – Development Without Consent Sutherland Local Environmental Plan 1983 cl 19 Uniform Civil Procedure Rules 2005 (NSW) r 59.10 Wollongong Local Environmental Plan 1990 Wollongong Local Environmental Plan 2009 Yarrowlumla Local Environmental Plan 2002 cl 22 State Environmental Planning Policy No 1 – Development Standards
Cases Cited:	Bungendore Residents Group Inc v Palerang Council (No 3) [2007] NSWLEC 251 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 Currey v Sutherland Shire Council (1998) 100 LGERA 365 Franklins Ltd v Penrith City Council [1999] NSWCA 134 Lloyd v Wollongong City Council [2015] NSWLEC 146 Lomman v Windbelt Pty Ltd (2018) 237 LGERA 1; [2018] NSWLEC 29 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422
Category:	Principal judgment
Parties:	Karen Davis (Applicant) Igor Dodevski (First Respondent) Jyoti Elanor Fraya Durrant (Second Respondent) Nambucca Valley Council (Third Respondent)
Representation:	COUNSEL: S Berveling (Applicant) N/A (First to Third Respondents) SOLICITORS: Savage and Love (Applicant) Fishburn Watson O’Brien (First and Second Respondents) Marsdens (Third Respondent)
File Number(s):	21/37037