Hall v City of Burnside & Anor - [2005] SASC 199

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Application for Judicial Review)
HALL v CITY OF BURNSIDE & ANOR
Judgment of The Honourable Justice Debelle
1 June 2005
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - LAPSE OF CONSENT
Development consent – further authorisations required to commence development – whether failure to obtain those authorisations within prescribed time – whether development consent had lapsed – held development consent had lapsed.
Development Act 1993 s 32, s 33, s 35, s 38, s 40, s 86, s 88; Development Regulations 1993 reg 46, reg 48; Environment Resources and Development Court Act 1993 s 2, s 30, s 32, referred to.
Patton v Buchanan Borehole Collieries Pty Ltd (1993) 178 CLR 14, applied.
Electric Light & Power Supply Corporation Ltd v Electricity Commission of New South Wales (1956) 94 CLR 554, distinguished.

HALL v CITY OF BURNSIDE & ANOR
[2005] SASC 199
Land and Valuation Division

DEBELLE J. The plaintiffs own and occupy a house in the Hills Face Zone. It is within the area of the Corporation of the City of Burnside (“the Council”). The plaintiffs enjoy extensive views over the Adelaide metropolitan area.
City Apartments Pty Ltd (“City Apartments”) owns land adjoining the plaintiffs’ land. Access to its land is gained by right of way over the plaintiffs’ land. For some six years City Apartments has been endeavouring to obtain development approval to construct a dwelling on its land. The plaintiffs have opposed its efforts. There has been a good deal of litigation between the plaintiffs and City Apartments. City Apartments believes that it has obtained a grant of development approval and has commenced construction of its dwelling. The plaintiffs contend that the development approval on which City Apartments relies is invalid so that it cannot proceed to construct the dwelling. In this action the plaintiffs seek, among other things, a declaration that the development approval is invalid and an injunction restraining City Apartments from constructing the dwelling.
The application was heard on Friday last. I then made orders upholding the plaintiffs’ contentions for reasons to be published. These are the reasons. The Council did not make any submissions and stated it would abide the orders of the Court.
The Relevant History
On 17 April 2002 City Apartments lodged an application with the Council to construct the dwelling. The Council classified the proposed development as Category 3 because the construction of the dwelling involved earthworks in the Hills Face Zone. Exercising their rights under s 38 of the Development Act 1993 the plaintiffs made representations to the Council objecting to the proposed development.
On 21 January 2003 the Council refused to grant provisional development plan consent to the proposed development. City Apartments appealed against the decision of the Council to the Environment, Resources and Development Court (“the Environment Court”). The plaintiffs were joined as a party to that appeal.
On 20 January 2004 the Environment Court delivered judgment and made orders allowing the appeal of City Apartments and granting provisional development plan consent to construct the dwelling.
Both the plaintiffs and the Council appealed against the Environment Court’s decision to the Full Court of this Court. On 22 September 2004 the Full Court dismissed both appeals.
On 20 October 2004 the plaintiffs applied for special leave to appeal to the High Court of Australia. The application for special leave has not yet been set down for hearing.
Three Authorisations Required
Before proceeding further, it is necessary to have an understanding of what is required in order to undertake a development lawfully. No development may be undertaken unless the development is an approved development: s 32 of the Development Act. A development involving the construction of a dwelling is an approved development if
(1) the developer has obtained provisional development plan consent;
(2) the developer has obtained provisional building rules consent; and
(3)a relevant authority, in this case the Council, has approved the development: see s 33 (4).
City Apartments contends that by reason of the decision of the Full Court it obtained a grant of provisional development plan consent on 22 September 2004. On 2 February 2005 City Apartments applied for provisional building rules consent and on 4 March 2005 that consent was granted. On 21 March 2005 the Council granted development approval.
Development Authorisations May Lapse
The Development Act and the Development Regulations 1993 contain provisions which require a person who has obtained development consent to act upon it with reasonable expedition. If the holder of the development consent does not act upon it in the prescribed time, the consent will lapse. It is necessary to notice first sub-ss (2) and (3) of s 40 which provide
(2)A development authorisation under this Division remains operative for a period prescribed by the regulations.
(3)A relevant authority may, on its own initiative or on the application of a person who has the benefit of any relevant development authorisation, extend a period prescribed under subsection (2).
Regulation 48 of the Development Regulations gives effect to s 40 (2) and provides the circumstances in which a development consent or a development approval will lapse. It is in these terms
(1)Subject to this or any other regulation, any consent or approval under Part 4 of the Act (whether subject to conditions or not) will lapse at the expiration of -
(a)     subject to the operation of paragraph (b) - 12 months from the operative date of the consent or approval;
(b)     if -
(i)the relevant development has been lawfully commenced by substantial work on the site of the development within 12 months from the operative date of the approval - three years from the operative date of the approval, unless the development has been substantially or fully completed within those three years (in which case the approval will not lapse); or
(ii)if the relevant development involves the division of land and an application for a certificate under section 51 of the Act has been lodged with the Development Assessment Commission within 12 months from the operative date of the relevant consent - three years from the operative date of the consent.
(2)     A period prescribed by subregulation (1) may be extended by a relevant authority -
(a)    when the relevant consent or approval is given; or
(b)    at such later time as may be appropriate.¹
(3)     Where an approval is given, any consent which was necessary for that approval will not lapse unless or until the approval lapses.
(4)     In this regulation -
the operative date of a consent or approval means -
(a)    the date on which the consent or approval is given; or
(b)if the decision to grant the consent or approval has been the subject to an appeal under this Act, the date on which any appeal is dismissed, struck out or withdrawn, or all questions raised by any appeal have been finally determined (other than any question as to costs),
whichever is the later.
It is against that background that the plaintiffs contend that the grant of development approval by the Council on 21 March 2005 was invalid. They submit
1.That the grant of provisional development plan consent became operative on 20 January 2004, the date when the Environment Court upheld the appeal of City Apartments and granted development consent.
2.That the period of 12 months to which reg 48 (1) (a) refers commenced to run from 20 January 2004. That period expired on 21 January 2005 so that the grant of provisional development plan consent then lapsed.
3.City Apartments had not obtained a development approval by 21 January 2005. It was not possible thereafter for a development approval to be granted.
4.Accordingly the grant of development approval on 21 March 2005 by the Council was ultra vires, invalid and of no effect.
The plaintiffs have an alternative argument. It is that by reason of the terms of s 38 (16) of the Development Act and reg 48 (4) (b), the grant of provisional development plan consent is not operative and will not become operative until the plaintiffs’ application for special leave to appeal (and any subsequent appeal) has been determined by the High Court. On either approach the plaintiffs contend that there is no valid development consent and City Apartments should be restrained from proceeding with the construction of the dwelling.
For its part, City Apartments contends that its development approval is valid. It submits that it obtained a grant of provisional development plan consent on 22 September 2004 so that the remaining two authorisations were obtained within the period of 12 months.
Section 38 (16)
In addition to reg 48, s 38 (16) of the Development Act provides when certain kinds of development consent become operative. It provides
(16)A decision of a relevant authority in respect of a Category 3 development in respect of which representations have been made under this section does not operate -
(a)     until the time within which any person who made any such representation may appeal against a decision to grant the development authorisation has expired; or
(b)     where an appeal is commenced -
(i)     until the appeal is dismissed, struck out or withdrawn; or
(ii)until the questions raised by the appeal have been finally determined (other than any question as to costs).
There are, therefore, two provisions which prescribe when a development consent or approval becomes operative, s 38 (16) of the Development Act and reg 48 of the Development Regulations. It is convenient to examine s 38 (16) first.
Section 38 (16) forms part of a section which prescribes the kinds of development applications in respect of which members of the public may make representations to planning authorities opposing them, for the hearing by planning authorities of those persons who make representations, and for a right of appeal against a decision of a planning authority granting provisional development plan consent by persons who have made representations. For convenience, I will refer to a person who makes a representation as “an objector”, to the applicant for development consent as “the intended developer”, and to the grant of provisional development plan consent as “development consent”. Section 86 (1) (b) provides a right of appeal to an objector only in respect of a Category 3 development. Subsections (12) to (15) provide for the procedures in relation to that appeal while sub-s (16) provides when a development consent for a Category 3 development in respect of which a representation was made will become operative.
Subsection (16) deals with two situations, the time within which the objector is considering whether to appeal and, if the objector lodges an appeal, the time pending the hearing and determination of the appeal. In the former, the decision does not become operative until the time for appeal (which by reason of s 38 (14) is 15 days) has expired and no appeal has been instituted. If the objector appeals, the decision does not become operative until the appeal has been determined, struck out, withdrawn or until the questions raised by the appeal have been finally determined. Paragraph (b) (ii) of sub-s (16) is intended to deal with the situation where an objector appeals to the Environment Court. It may also apply where there is a subsequent appeal to the Supreme Court and if there is an appeal by leave to the High Court but it is unnecessary to decide that issue in this case. The purpose of s 38 (16) is to ensure that a developer does not commence the development until the objector’s rights of appeal have been exhausted. Thus, the effect of s 38 (16) is that a person holding a development consent is not permitted to obtain a development approval and, therefore, commence the development either during the period in which the objector is considering whether to appeal or, if the objector appeals, during the period pending the hearing and determination of the objector’s appeal. Plainly, there is no need for such a provision where there has been no representation objecting to the intended development. In such a case the decision of the planning authority will become operative upon notification to the person applying for development consent: s 38 (12).
This analysis points to the conclusion that s 38 (16) applies only in respect of appeals against the grant of development consent by persons who have made representations opposing a Category 3 development. That conclusion is supported by other aspects of sub-s (16).
Although the opening words of s 38 (16) refer to the decision of a relevant authority and not to the grant of development consent, it is clear that it only operates in respect of the grant of a consent or approval. First, there is no need to state when the decision of a planning authority refusing development consent becomes operative because the refusal creates nothing which might become operative. Secondly, para (a) of sub-s (16) by its terms can only apply where a consent or approval has been granted. If consent has been refused, there is no scope for the operation of para (a). Thirdly, para (b) of sub-s (16) can only apply to an appeal by an objector against the grant of a consent or approval. That is apparent from the fact that it provides that the decision becomes operative when “the appeal is dismissed, struck out or withdrawn”. Those words can only apply to an appeal by an objector against the grant of development consent. They cannot refer to an appeal by an intended developer against a decision refusing development consent. They could only refer to an appeal by an intended developer if the word “allowed” or some other similar expression appeared in para (b) (i) of sub-s (16). The fact that para (b) (ii) of sub-s (16) states that the decision does not become operative until the questions raised by the appeal have been finally determined does not alter the above conclusion. As already mentioned, the purpose of that section is to state when the decision becomes operative in those cases where there is an appeal to the Environment Court and perhaps further appeals to superior courts. Finally, sub-s (16) is but one of a number of subsections (sub-ss (12) to (16) of s 38) dealing with appeals by an objector. Section 38 contains no provisions at all relating to an appeal by an intended developer who has been refused development consent. That right of appeal is provided in s 86 of the Development Act. In short, sub-ss (12) to (16) are all concerned with appeals by objectors. They do not refer to appeals by intended developers.
For these reasons, there is nothing in s 38 (16) which in any way assists City Apartments.
Regulation 48
Regulation 48 (1) applies to any consent or approval under Part 4 of the Development Act. Two features must be noticed about the expression “any consent or approval”. First, it applies to any consent or approval under para (4). Secondly, it refers to both a consent and an approval. These two features make it quite clear that reg 48 (1) is intended to apply to any kind of consent or approval whatsoever under Part 4. In short, reg 48 (1) applies to a grant of provisional development planning consent, to a grant of provisional building rules consent and to a grant of development approval.
It will have been noticed that there is an inconsistency between reg 48 (4) (a) and s 38 (16) (a) in that reg 48 (4) (a) provides that the operative date is the date on which the consent or approval is given. That inconsistency is readily avoided by reading down reg 48 (4) (a) so that it does not apply to decisions granting development consent in respect of a Category 3 development where an objector has made representations to the planning authority opposing the intended development. Given the terms of s 38 (16), there is no need for reg 48 (4) (a) to apply to such decisions. Expressed another way, reg 48 (4) (a) must be read as being subject to s 38 (16). The intent of reg 48 (4) (a) is to deal with all other decisions granting or refusing a consent or approval, that is to say, decisions granting or refusing consent or approval for Category 1 and Category 2 developments and for Category 3 developments where no representations have been made objecting to the intended development. Those three categories constitute the overwhelming proportion of decisions granting or refusing consent or approval.
Paragraph (b) by its terms can only operate in respect of a decision granting a consent or approval. It plainly provides for the operative date in the case of an appeal by an objector. In that respect it mirrors para (b) of s 38 (16).
Mr Roder, who appeared for City Apartments, contended that reg 48 (1) did not apply to a grant of provisional development plan consent because it was plainly not possible lawfully to commence construction until development approval had been granted. That argument must be rejected for the above reasons and, as well, because it is possible to obtain within 12 months of the grant of development consent both provisional building rules consent and a development approval.
Mr Roder also contended that the decision of the Environment Court of 20 January 2004 granting provisional development planning consent was not a consent or approval under Part 4 of the Development Act but a consent or approval under Part 11 of that Act. The contention is grounded on the fact that it is Part 11 of the Act which provides for appeals from decisions granting or refusing development consent. Part 11 includes both s 86 which provides the right of appeal to the intended developer against the refusal of a consent and s 88 which prescribes the powers of the Environment Court on appeal.
This contention betrays a misconception of the structure of the Development Act. Although an appeal to the Environment Court is a hearing de novo, the Court must have regard to the matters prescribed in s 33 of the Development Act which is in Part 4 of the Act. Similarly, if there should be an appeal from the Environment Court to the Supreme Court, the Supreme Court must have regard to matters prescribed in s 33 of the Development Act. When the Court confirms, varies or reverses a decision of a planning authority, it does so after it has had regard to the matters in s 33, which is in Part 4 of the Act. In other words, although Part 11 of the Development Act provides the right of appeal and spells out the powers of the Environment Court and that court makes its decision determining the appeal under Part 11, the effect of the Environment Court’s decision is a grant of a consent or approval under Part 4.
Furthermore, reg 48 (1) speaks of an approval under Part 4, not of an approval given under Part 4. The consent or approval to which reg 48 (1) refers is a consent or approval which is necessary to undertake development lawfully. Expressed another way, s 32 of the Development Act provides that no development may be undertaken unless the development is an approved development. Section 33 prescribes the manner in which approval for development may be obtained. Regulation 48 (1) applies to such approvals. Part 11 does not provide for approvals but for appeals. A consent or approval for the purpose of s 33 is a consent or approval under Part 4. The Environment Court decides whether to grant a consent and approval for the purposes of Part 4. It is, in other words, a consent or approval under Part 4.

Finally, the clear intent of reg 48 is to provide when a development consent will lapse. If it were decided that the Environment Court’s decision is made under Part 11, there would be no provision in either the Development Act or the Development Regulations which prescribes the period within which an applicant for development consent whose application has been refused by a planning authority but upheld by the Environment Court must apply for development approval under s 33 (4). Expressed another way, the consequence would be that there would be no provision providing for the lapse of a consent. This cannot be what Parliament intended.
In this case the Environment Court purported to grant provisional development plan consent. The parties were notified of the result by the Environment Court. The fact that the Council granted development approval indicates the Council was proceeding on the footing that a valid provisional development plan consent had been granted. The only date upon which it could have been granted was 20 January 2004, the date when the Environment Court published its decision allowing the appeal by City Apartments. The development consent was not granted when the Full Court upheld the Environment Court’s decision. The only order made by the Full Court was to dismiss the appeals by the plaintiffs and the Council. By reason of reg 48 (4) (a), the operative date for the development consent was 20 January 2004, the date on which the Environment Court granted provisional development plan consent.
For these reasons, when the Environment Court decided on 20 January 2004 to grant provisional development plan consent, that was the grant of a consent under Part 4 of the Act to which reg 48 (1) applied. The operative date of the decision was 20 January 2004.
Mr Roder sought to uphold his argument that the decision of the Environment Court did not become operative until 22 September 2004, when the Full Court published its decision, by relying on para (b) in sub-s (4) of reg 48. Paragraph (b) operates in respect of an appeal “under this Act”, that is to say, an appeal under the Development Act. The only appeal under the Development Act was the appeal by City Apartments to the Environment Court. The appeals by the plaintiffs and the Council to the Supreme Court were appeals pursuant to s 30 of the Environment, Resources and Development Act. Paragraph (b) of reg 48 (4) does not assist City Apartments. Mr Roder called in aid the decision in Electric Light & Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554 at 559-560. However, that decision is clearly distinguishable.
There is a further reason why Mr Roder’s argument must fail. It is apparent from the terms of para (b) that it only operates where there has been a decision by a planning authority to grant a consent or approval. It applies to an appeal by an objector against the grant of development consent. The appeal by City Apartments was not an appeal from a decision to grant a consent or approval but from a decision refusing development consent. Thus, the provisions of para (b) do not apply to the appeal by City Apartments. Instead, for the reasons already expressed, it is the provisions of para (a) of reg 48 (4) which operate.
In this respect it is necessary to note also the terms of s 32 of the Environment, Resources and Development Court Act 1993 which provides:
(1)Where a decision or order has been given or made by the Court, and the Court, or the Supreme Court, is satisfied that an appeal under this Part has been instituted, it may suspend the operation of the decision or order until the determination of the appeal.
(2)The suspension of a decision or under subsection (1) may be terminated at any time by the court which imposed the suspension.
In s 32 “the Court” is the Environment, Resources and Development Court: s 2 of the Environment, Resources and Development Court Act. If there is an appeal to the Supreme Court by either the intended developer or the objector, the intended developer may apply pursuant to s 32 to suspend the operation of the consent or approval until the Supreme Court has published its decision. In this way the intended developer is able to avoid time running pending the resolution of the appeal. Section 32 is complementary to s 38 (16) of the Development Act and to reg 48. It reinforces the conclusions reached above. The opportunity was available to City Apartments to make an application under s 32 once the plaintiffs and the Council had appealed to the Full Court. It did not make any such application.
For these reasons, reg 48 does not assist City Apartments.
The effect of reg 48 is that the operative date of the grant of provisional development plan consent was 20 January 2004, when the Environment Court published its decision. From that date the period of 12 months mentioned in reg 48 (1) began to run. It expired on 21 January 2005. As City Apartments had not by then obtained a grant of development approval under s 33 (4), the provisional development plan consent lapsed. The consequence was that the Council had no power or authority to grant development approval. As Mr Henry submitted, by the time the Council came to grant development approval, the provisional development plan consent was stale. Regulation 46 (1) prevents a grant of development approval in respect of a stale development consent. The development approval is, therefore, invalid.
Equitable Remedies
The plaintiffs seek a declaration that the development approval is ultra vires, void and of no effect. They also seek an injunction restraining City Apartments from constructing the dwelling. As these are equitable remedies, I must consider whether in the exercise of my discretion there is any ground for refusing them. The fact that the development approval is invalid is a consequence of the terms in which the Development Act and Development Regulations are expressed. Notwithstanding the obvious hardship to City Apartments, I have no alternative but to give effect to those provisions and declare the development approval invalid. Furthermore, the remedies were available to City Apartments but it failed to use them. It could have applied much earlier for provisional building rules consent and for development approval before the period of 12 months elapsed. Alternatively, it could have applied under s 32 of the Environment, Resources and Development Court Act. It failed to do either and must suffer the consequences.
The only discretionary factor which might have assisted City Apartments is whether it would be futile to make the order. It is not. If the Council does not extend the operation of the grant of provisional development plan consent, it will be necessary for City Apartments to apply for a fresh grant of provisional development plan consent. It cannot be assumed that the Council would grant provisional development plan consent again. First, the Council did not grant development consent when it considered this application. Secondly, the planning controls have changed since the Environment Court’s decision. The Hills Face Zone provisions in the Council’s Development Plan have been amended. The relevant amendment is to Principle 28 of the Principles of Development Control for the Hills Face Zone so as to make a detached dwelling in the Hills Face Zone a non-complying development if the depth of the excavation and or height of filling of land exceeds 1.5 metres. The dwelling proposed by City Apartments involves an excavation to a depth exceeding 1.5 metres. That is one barrier for City Apartments. A second barrier lies in the fact that the proposal is for a non-complying development so that City Apartments cannot obtain a grant of provisional development plan consent unless the Development Assessment Commission concurs in the granting of the consent: s 35 (3) of the Development Act. There is a third barrier. If the Council refuses to grant provisional development plan consent, City Apartments will have no right of appeal from that decision: s 35 (4) of the Development Act. If the Council adheres to its decision, this development cannot proceed.
For these reasons, the making of the order will not necessarily be futile.
Law Reform
The issues in this action demonstrated a need for prompt review of the operation of s 38 (16) and reg 48 as well as the need for review of the legislative régime in respect of the operation of a development consent ordered on appeal by either the Environment Court or any superior court.
Extending a Consent or Approval
The plaintiffs also seek a declaration that City Apartments is not able to apply for an extension of the period of operation of the provisional development plan consent.
Section 40 (3) of the Development Act and reg 48 (2) provide the circumstances in which a planning authority may extend the period of operation of a consent or approval. It is convenient to repeat s 40 (3) which provides:
(3)A relevant authority may, on its own initiative or on the application of a person who has the benefit of any relevant development authorisation, extend a period prescribed under subsection (2).
It is also convenient to repeat reg 48 (2) which provides:
(2)A period prescribed by subregulation (1) may be extended by a relevant authority –
(a) when the relevant consent or approval is given; or
(b) at such later time as may be appropriate.
It will have been noticed that neither provision states whether it is possible to apply for an extension, or for the planning authority to grant an extension, after the consent or approval has expired.
Mr Henry, who appeared for the plaintiffs, contended that the use of the word “extend” in its various forms in both s 40 (3) and reg 48 (2) implied that the application for extension had to be made before the consent or approval had expired. An application made after the period had expired would, he submitted, be a revival or renewal of a consent or approval, not an extension of it. I do not accept that argument which seeks to read too much into the word “extend”. In ordinary usage, a thing may be extended both from within and from without. Furthermore, s 40 (3) and reg 48 (2) are remedial provisions. They should, therefore, receive a liberal construction, giving full scope to the natural and ordinary meaning of the words used: Patton v Buchanan Borehole Collieries Pty Ltd (1993) 178 CLR 14 per Mason CJ, Deane and Dawson JJ at 17. Given the absence of any provision requiring the application for extension to be made before the consent or approval has expired, both s 40 (3) and reg 48 (2) should be interpreted to mean that an application for extension can be made either before or after the consent or approval has expired.
Policy reasons support that conclusion. The facts of this case provide a useful example. The holder of a development consent may mistakenly believe that the consent or approval is in full force and effect when in truth it has lapsed. It would be quite unfair to deny that person the ability to apply to extend the period of the consent. Whether the consent or approval should be extended will, of course, be a matter for the planning authority to determine. I do not think that the fact that s 40 (3) states that the application for extension may be made by the person who has the benefit of the development authorisation requires a different conclusion. The expression “the benefit of the development authorisation” does not necessarily imply that the development consent is still on foot.
Plainly, any application for an extension made after the consent or approval has expired must be made within a reasonable time after the date of expiry or the date when the holder of the development consent became aware that the consent had expired. If the application is not made within a reasonable time, that may well be an important factor telling against extending the consent or approval. Other relevant factors will be whether the planning legislation has altered, the reasons why the application for extension has been made, and whether others are unfairly prejudiced if the extension is granted. These are not necessarily the only factors. Each case will have to be considered on its own facts.
Mr Henry sought to support his argument by pointing to the fact that, if the application for extension is refused, City Apartments has a right of appeal to the Environment Court pursuant to s 86 of the Development Act but, if it is granted an extension, the plaintiffs do not have such a right. That is an irrelevant factor since the same position would occur even if the application had been made before the consent had expired. The unequal position of intended developers and objectors in this respect is another matter where legislative reform should be contemplated.
For all of these reasons, an application to extend the period of operation of a consent or approval may be made after the consent or approval has expired. The plaintiffs are not, therefore, entitled to the declaration they seek.
Mr Roder made an oral application for a declaration that City Apartments is at liberty to apply for an extension of the period of operation of the provisional development plan consent. A declaration to that effect will remove any uncertainty which may result if no order is made on the plaintiff’s application.
In the particular circumstances of this case, it will be necessary for City Apartments to apply for an extension of the period of the operation of the provisional planning development consent. Given that the grant of development approval is invalid, it will be necessary for City Apartments to apply also for a fresh grant of development approval, if the Council extends the operation of provisional planning development consent.
Conclusion
For all of these reasons I made orders on Friday last as follows
1.Declaring the development approval issued by the first defendant to the second defendant in respect of DA180/0455/02/C3 (“the development approval”) dated 21 March 2005 is invalid.
2.Quashing the development approval.
3.Declaring that the second defendant is at liberty to apply to the first defendant for an extension of the period of the operation of the provisional development plan consent granted to it by the decision of the Environment, Resources and Development Court published on 20 January 2004.
4.Declaring that if the first defendant extends the period of the operation of the provisional development plan consent granted to the second defendant, the second defendant is at liberty to apply to the first defendant for a fresh grant of development approval.
5.Granting an injunction restraining the second defendant its employees, agents or independent contractors from proceeding directly or indirectly with the development the subject of the development approval.
6.That the second defendant pay the costs of the plaintiffs as taxed or agreed.