Gunning Sustainable Development Association Inc v Upper Lachlan Council

[2005] NSWLEC 182

Land and Environment Court

of New South Wales

CITATION:

Gunning Sustainable Development Association Inc v Upper Lachlan Council and Another [2005] NSWLEC 182

PARTIES:

APPLICANT
Gunning Sustainable Development Association Inc

FIRST RESPONDENT
Upper Lachlan Council

SECOND RESPONDENT
Tinvest Pty Limited
Upper Lachlan Council

FILE NUMBER(S):

40498 of 2004

CORAM:

Talbot J

KEY ISSUES:

:- Adjournment.

LEGISLATION CITED:

Environmental Planning and Assessment Regulation 2000 cl 97, 97(4)

CASES CITED:

F Hannan Pty Ltd v Electricity Commission of New South Wales [No.3] (1985) 66 LGRA 306

DATES OF HEARING:

29/03/2005

EX TEMPORE JUDGMENT DATE:

03/29/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr G D Stewart-Richardson (Agent)
SOLICITORS
N/A

FIRST RESPONDENT
Mr J E Robson SC
SOLICITORS
Minter Ellison

SECOND RESPONDENT
Mr P R Clay (Barrister)
SOLICITORS
Michell Sillar

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

40498 of 2004 Gunning Sustainable Development Association v Upper Lachlan Council and Another

JUDGMENT

1 Talbot J: There are a number of issues to be resolved following submissions made by the second respondent whereby it seeks to persuade the Court to exercise its discretion not to make a declaration of invalidity in respect of the subject development consent. The first respondent is prepared to accept that it is open to merely make an order restraining the second respondent from acting on the consent. The applicant has already made comprehensive submissions to the contrary.

2 The second respondent has purported to surrender the consent since judgment was delivered. The form of the surrender document has become an exhibit. The applicant has made submissions that raise serious issues regarding the effectiveness of the surrender.

3 It seems to me that both respondents accept that a consideration of cl 97 of the Environmental Planning and Assessment Regulation 2000 reflect upon whether or not the surrender has been made in an effective way. There are serious doubts that it has.

4 The Council recognises that it has yet to comply with the letter of at least cl 97(4) of the Regulation. It can accomplish that task within a period of seven days.

5 The second respondent acknowledges it must provide some information to the first respondent to enable it to carry out that task. I am assured from the bar table by Mr Clay that can be done within the same timeframe.

6 Issues raised by the applicant make it necessary to understand what actions the second respondent has taken to date relying upon the purported granting of consent by the Council. The applicant in its usual thorough way has demonstrated that, prima facie, a plan of subdivision has been approved by the Council and registered by the Registrar General. The approval and registration purport to rely upon the effect of the development consent the subject of the applicant’s challenge. There are still unresolved matters in respect of other actions that may have been taken. They may or may not be reversible in the event that the consent is set aside.

7 I am concerned that I do not make my final decision until the whole of the relevant facts are in evidence. By granting an adjournment the Court will not necessarily be indicating, and indeed does not in any way indicate, that it embraces or recognises that the steps the first and second respondents are taking as being a panacea in any way for the problems that the second respondent faces in seeking to preserve a position whereby it can gain some benefit from the consent.

8 Mr Robson has informed me that the Council is also considering its position in relation to the prospect of future changes to the LEP. That is not likely to have a great deal of bearing on the ultimate outcome.

9 It is not so much the surrender that concerns me. It is the lack of concise evidence in relation to what steps have been taken by the first and second respondents relying upon the development consent. They are matters about which I should be fully informed before I make a final decision. Ultimately the surrender, even if it is effective may not be a successful means of overcoming the purpose of making a declaration in respect of the inherent invalidity of the development consent.

10 The Court has a particular interest in ensuring that the objectives of the Environmental Planning and Assessment Act are achieved. Mr Stewart-Richardson in his submissions has made reference to the observations made by a former Chief Justice in F Hannan Pty Ltd v Electricity Commission of New South Wales [No.3] (1985) 66 LGRA 306 at 312 to 313. Those matters are apposite to the dispute which is now before the Court, namely the appropriate remedy that, or perhaps more succinctly put, the appropriate relief that should be granted in the best interests of the administration of and for meeting the objects of the Environmental Planning and Assessment Act.

11 In order to do that with full confidence the Council should present the Court with such evidence that is necessary to place me in a position to determine what is the best outcome in the public interest. The second respondent does not bear the same onerous responsibility as the Council in that respect. The second respondent has an interest in deriving some personal benefit from the consent. Although the second respondent is in a position to inform the Court as to the steps which it says it has taken pursuant to the development consent, it is in the wider interest that the Council provide such general assistance as it can before final relief is granted.

12 I can see no detriment from allowing the processing of the so-called surrender to be finalised as far as practicable within a reasonable timetable. Indeed if there is any such detriment it is likely to be far outweighed by the disadvantages from the Court attempting to resolve the position on the assumption of a valid surrender. The applicant’s challenge to the steps that have been taken and the identification of steps that have not been taken nevertheless would remain.

13 The second respondent is agreeable to paying an amount of $750 to the applicant as an offset to the expenses incurred by the applicant attending today, on what ultimately proved to be a futile exercise. The agreement by the second respondent is formally noted. I do not propose to make a formal order in that respect. The Court is nevertheless prepared to make such an order if the second respondent does not honour its acknowledged agreement.

14 For above reasons on balance and in order to deal with all interests of all parties and to enable the Court to be as fully informed as it can be within a reasonable time, I propose to grant the adjournment the second respondent seeks. It then falls for me to make directions to ensure that on the next (and let me emphasise final) occasion, all the relevant evidence within the power of the parties is produced at the final hearing. Irrespective of any shortcomings in the evidence at that time, the matter will be finally determined.

15 I will make orders (1), (2), (3) and (4) in the short minutes of order initialled by me.

16 I direct the parties to approach the Registrar today for the purposes of obtaining a hearing date of one day between 26 April and 4 May 2005.

....o0o....