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De Haas v Williams

De Haas v Williams

Case [2004] NSWLEC 15

Development Consent

Delegation of Authority

Statutory Interpretation

Public Notice Requirements

Invalidity of Consent

Modification of Consent

Planning & Development Law

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Land and Environment Court

of New South Wales

CITATION: De Haas and Anor v Williams and Anor [2004] NSWLEC 15

PARTIES:
FIRST APPLICANTS
Tao and Lynne De Haas
SECOND APPLICANT
Ronald Daubaras
FIRST RESPONDENTS
Paul Williams and Karin Williams
SECOND RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 40537 of 2003

CORAM: Cowdroy J

KEY ISSUES: Development Consent :- validity of development application and modification application - consent granted of development application contrary to planning instrument - absence of SEPP 1 objection - power of delegate exceeded in respect of development application and of modification application - reissue of development consent in absence of new development application - delegate failing to form opinion before exercising power to grant consent - contentious development application - misdescription of address in notification

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 72, s 76A, s 79C, s 80, s 96, s 101, s 104A
Environmental Planning and Assessment Regulation 2000, cl 119, cl 124
Ku-ring-gai Planning Scheme Ordinance 1971, cl 46
Land and Environment Court Act 1979, s 69(2)
State Environmental Planning Policy No 1 - Development Standards, cl 6, cl 7

CASES CITED: Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312;
Cobden-Jones and Another v Woollahra Municipal Council and Others (2002) 118 LGERA 41;
Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47;
Franklins Limited v Penrith City Council and Campbells Cash & Carry Pty Limited [1999] NSWCA 134;
Lawrence Wilson v Iron Gates Pty Ltd and Richmond River Shire Council (Stein J, Land and Environment Court of New South Wales, 2 December 1996, unreported);
Lend Lease Management Pty Ltd and Burns Philp Trustee Co Ltd v Sydney City Council, Heritage Council of New South Wales and New World Properties (NSW) Pty Ltd (1986) 68 LGRA 61;
Levenstrath Community Association Inc v Tomies Timber and Another (2000) 108 LGERA 176;
Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91;
Lyons v Sutherland Shire Council and Others (2001) 117 LGERA 334;
Manly Council v Hortis and Another (2001) 113 LGERA 321;
Nelson and Others v Burwood Municipal Council and Another (1991) 75 LGRA 39;
Proprietors of SP 13318 & 13555 v Lavender View Regency Pty Ltd and North Sydney Council (1997) 97 LGERA 337;
Somerville v Dalby and Others (1990) 69 LGRA 422;
Vaniga Pty Ltd v South Sydney City Council (1989) 74 LGRA 86;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

DATES OF HEARING: 18/11/2003
19/12/2003

DATE OF JUDGMENT: 02/11/2004

LEGAL REPRESENTATIVES:

FIRST APPLICANTS
Mr C. McEwen (Barrister)
SOLICITORS
Hannaford Lawyers
SECOND APPLICANT
Mr C. McEwen (Barrister)
SOLICITORS
Hannaford Lawyers
FIRST RESPONDENTS
Mr P. Williams
Litigant In Person
SECOND RESPONDENT
Mr J. Ayling SC
SOLICITORS
Abbott Tout

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40537 of 2003

Cowdroy J

11 February 2004

Tao and Lynne De Haas

First Applicants

Ronald Daubaras

Second Applicant

Paul Williams and Karin Williams

First Respondents

Ku-ring-gai…

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 De Haas v Williams

Details

AGLC: De Haas v Williams [2004] NSWLEC 15
Case: [2004] NSWLEC 15
Decision Date: 02/11/2004

CaseChat Overview and Summary

Tao and Lynne De Haas and Ronald Daubaras sought a declaration that development consent granted by Ku-ring-gai Council to Paul and Karin Williams in relation to a property in Killara was invalid. The applicants also sought a declaration that a consent to modify development application was invalid. The applicants argued that the consents were invalid on several grounds. First, that the development consent granted to the Williams was invalid because it was granted contrary to planning instruments and in the absence of an objection under State Environmental Planning Policy No 1 – Development Standards. Second, that the consent was invalid because the council had exceeded its power to grant the consent as the development application was contentious. Third, that the consent was invalid because it was granted in the absence of a new development application. Fourth, that the consent was invalid because the delegate did not form the requisite opinion that the development application was not contentious before exercising his power to grant the consent. Fifth, that the consent to modify the development consent was invalid because the council had failed to notify the modification application in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000. Sixth, that the consent to modify the development consent was invalid because the delegate did not form the requisite opinion that the modification application was not contentious before exercising his power to grant the consent. Finally, the applicants submitted that the advertisement made by the council in relation to the development consent did not comply with the requirements of the Environmental Planning and Assessment Act 1979 and the Environmental Planning and Assessment Regulation 2000 and therefore the Court retained jurisdiction to determine the validity of the consent. Cowdroy J held that the development consent and the consent to modify the development consent were invalid. The Court found that the consent was granted contrary to planning instruments and in the absence of an objection under State Environmental Planning Policy No 1 – Development Standards. The Court also found that the consent was invalid because the development application was contentious and the delegate did not form the requisite opinion that the development application was not contentious before exercising his power to grant the consent. Further, the Court found that the consent was invalid because it was granted in the absence of a new development application. The Court also found that the consent to modify the development consent was invalid because the council had failed to notify the modification application in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000. Finally, the Court found that the consent to modify the development consent was invalid because the delegate did not form the requisite opinion that the modification application was not contentious before exercising his power to grant the consent. The Court held that the advertisement made by the council in relation to the development consent did not comply with the requirements of the Environmental Planning and Assessment Act 1979 and the Environmental Planning and Assessment Regulation 2000 and therefore the Court retained jurisdiction to determine the validity of the consent. The Court made a declaration that the development consent and the consent to modify the development consent were invalid and restrained the respondents from relying on the consents. The Court ordered that the respondents pay the applicants' costs.

Orders