Fenwick v Woodside Properties Pty Ltd

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fenwick v Woodside Properties Pty Ltd [2016] NSWLEC 104

Hearing dates:

15 August 2016

Date of orders:

15 August 2016

Decision date:

16 August 2016

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

See orders at [28]

Catchwords:

JUDICIAL REVIEW: whether failure to notify modification applications to an existing development consent as required by law a jurisdictional error resulting in the invalidity of approvals – if so, whether subsequent modification approval taking into account the earlier invalid modification approvals also invalid – declarations made – costs reserved.

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 96(2)
Environmental Planning and Assessment Regulations 2000 reg 119(2)
Uniform Civil Procedure Rules 2005 r 59.10

Cases Cited:

Csillag v Woollahra Council [2011] NSWLEC 17; (2011) 181 LGERA 141

 

Hollis v Shellharbour City Council [2002] NSWLEC 83

 

Manning v Bathurst Regional Council (No 2) [2013] NSWLEC 186; (2013) 199 LGERA 147

 

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

 

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Tweed Business and Residents Focus Group Inc v Northern Region Joint Regional Planning Panel [2012] NSWLEC 166

Category:

Principal judgment

Parties:

Christine Fenwick (Applicant)
Woodside Properties Pty Ltd (First Respondent)
Rochester Estate Pty Limited (Second Respondent)
Wingecarribee Shire Council (Third Respondent)

Representation:

Counsel:
Mr P Clay SC and N Hammond (Applicant)
Mr P Rigg, solicitor (Respondent)

  Solicitors:
Hones Lawyers Pty Ltd (Applicant)
P Rigg (First and Second Respondents)
Swaab Attorneys (Third Respondent)

File Number(s):

2016/152445

Publication restriction:

Nil

Judgment

Ms Fenwick Challenges the Validity of Three Modification Application Approvals

1. By further amended summons filed in Court with leave on 15 August 2016, the applicant, Ms Christine Fenwick, seeks declarations that three determinations by Wingecarribee Shire Council (“the council”) approving three modification approvals are invalid, principally on the basis that, in respect of the first two determinations, there had been a failure to notify the modification applications as required under the Environmental Planning and Assessment Act 1979 (“the EPAA”) and the Environmental Planning and Assessment Regulations 2000 (“the Regulations”), and in respect of the third determination, because it was premised, in material respects, on the earlier impugned modification approvals.

2. The parties relied on an agreed statement of facts which stated as follows:

1   The land the subject of the proceedings is former Lot 30 DP 1015355 and Lot 221 DP 738203, which are now Lot 33 DP 1205423 and Lot 32 DP 1205423, located at 102-106 and 108-114 Wingello Road, Bundanoon (Land).

2   The Land was within Zone 2(a) Residential "A" Zone pursuant to the Wingecarribee Local Environmental Plan 2010 (LEP) at all relevant times.

3   The First Respondent, Woodside Properties Pty Limited, is the owner of Lot 33 DP 1205423 and the Second Respondent, Rochester Estate Pty Limited, is the owner of Lot 32 DP 1205423, those lots together comprising the Land.

4   The Applicant and…