Feldkirchen Pty Ltd v Development Implementation Pty Ltd

Case [2022] NSWCA 227

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Feldkirchen Pty Ltd v Development Implementation Pty Ltd [2022] NSWCA 227
Hearing dates: 16 September 2022
Date of orders: 09 November 2022
Decision date: 09 November 2022
Before: Macfarlan JA at [1];
Meagher JA at [2];
Preston CJ of LEC at [3]
Decision:

(1) The appeal is dismissed.

(2) The appellant is to pay the respondents’ costs of the appeal.

Catchwords:

JUDICIAL REVIEW – modification of development consent – conditions governing exercise of power – consideration of reasons for grant of consent – whether reasons given – found no breach of condition if no reasons given – satisfaction that modified development substantially the same as originally approved development – whether opinion of satisfaction formed – not proven opinion not formed

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.55

Environmental Planning and Assessment Regulation 2000 (NSW), cl 100

Land and Environment Court Act 1979 (NSW), s 58

Cases Cited:

Arrage v Inner West Council [2019] NSWLEC 85

Botany Bay City Council v Premier Customs Service Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226

Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2010) 178 LGERA 411; [2010] NSWCA 353

City of Ryde Council v New South Wales (2019) 242 LGERA 211; [2019] NSWLEC 47

Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52; [2009] NSWLEC 69

Hill v Woollahra Municipal Council (2003) 127 LGERA 7; [2003] NSWCA 106

King v Bathurst Regional Council (2006) 150 LGERA 362; [2006] NSWLEC 505

Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280

Notaras v Waverley Municipal Council (2007) 161 LGERA 230; [2007] NSWCA 333

Parramatta City Council v Hale (1982) 47 LGRA 319

Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333

South East Forest Rescue Inc v Bega Valley Shire Council (2011) 211 LGERA 1; [2011] NSWLEC 250

Springer v Woollahra Municipal Council (2000) 108 LGERA 392; [2000] NSWLEC 135

Category:Principal judgment
Parties: Feldkirchen Pty Ltd (Appellant)
Development Implementation Pty Ltd (First Respondent)
Wingecarribee Shire Council (Second Respondent)
Representation:

Counsel:
Mr J Lazarus SC with Mr J Farrell (Appellant)
Mr A Galasso SC with Ms N Hammond (First Respondent)
Submitting appearance (Second Respondent)

Solicitors:
B Bilinsky & Co (Appellant)
Wilshire Webb Staunton Beattie (First Respondent)
Marsdens Law Group (Second Respondent)
File Number(s): 2022/16926
 Decision under appeal 
Court or tribunal:
Land and Environment Court
Jurisdiction:
Class 4
Citation:

[2021] NSWLEC 116

Date of Decision:
22 December 2021
Before:
Robson J
File Number(s):
2020/248514

HEADNOTE

[This headnote is not to be read as part of the judgment]

Feldkirchen Pty Ltd (Appellant) appealed to the Court under s 58 of the Land and Environment Court Act 1979 (NSW) against the dismissal of judicial review proceedings it brought in the Land and Environment Court challenging the decision…

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Details
AGLC
Feldkirchen Pty Ltd v Development Implementation Pty Ltd [2022] NSWCA 227
Case
[2022] NSWCA 227
Decision Date

CaseChat Overview and Summary

Feldkirchen Pty Ltd (the appellant) sought judicial review of a decision by Development Implementation Pty Ltd (the respondent) to modify a development consent. The dispute concerned whether the respondent had complied with certain conditions attached to its power to modify the consent, specifically regarding the consideration of reasons for the original grant of consent and the formation of an opinion that the modified development was substantially the same as the originally approved development. The matter came before the Land and Environment Court of New South Wales.

The primary legal issues before the Court were whether the respondent had breached a condition requiring it to consider the reasons for the original grant of development consent when deciding on a modification application, and whether the respondent had formed the necessary opinion that the modified development was substantially the same as the development originally approved. The appellant contended that the respondent had failed to satisfy these conditions.

The Court reasoned that a condition requiring consideration of reasons for the original grant of consent would only be breached if reasons were actually given and not considered. In the absence of any evidence that reasons were provided, the Court found no breach. Furthermore, the Court held that the appellant had not proven that the respondent had failed to form the requisite opinion that the modified development was substantially the same as the originally approved development. The Court applied principles of administrative law concerning the exercise of statutory powers and the onus of proof in judicial review proceedings.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

(1) The appeal is dismissed.

(2) The appellant is to pay the respondents’ costs of the appeal.

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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