Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Hanave Pty Ltd v Waverley Council [2025] NSWLEC 19 Hearing dates: 12 June 2024 Date of orders: 13 March 2025 Decision date: 13 March 2025 Jurisdiction: Class 4 Before: Pritchard J Decision: The Court:
(1) Declares that condition 10 of the development consent granted by the second respondent on 27 September 2023 in respect of development application no. DA-80/2023 lodged on behalf of the first and second applicant is invalid and of no force or effect.
(2) Orders the respondents to pay the applicants’ costs of these proceedings.
(3) Orders the parties to seek to have the proceedings relisted on a business date by no later than 14 days from the making of these orders for any further directions. Otherwise, the proceedings brought by the applicants are dismissed in their entirety.
Catchwords: JUDICIAL REVIEW — whether the consent authority had power to impose a condition requiring an affordable housing contribution — operation of ss 4.17(1)(h) and 7.32 of the Environmental Planning and Assessment Act 1979 (NSW) — construction of cl 15A of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) — whether invalid condition — whether the condition can be severed from the development consent
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) (as at 27 September 2023) ss 4.15, 4.17, 4.59, 7.11, 7.13, 7.32
Environmental Planning and Assessment Act 1979 (NSW) (repealed) ss 37, 94F, 94G, 101, Sch 6
Environmental Planning and Assessment Amendment (Affordable Housing) Act2000 ((NSW) Sch 1[3]
Environmental Planning and Assessment Amendment Act 2008 (NSW) (repealed) Sch 1, 3
Environmental Planning and Assessment Amendment Act 2017 (NSW) (repealed) Sch 12
Interpretation Act 1987 (NSW), ss 30, 30A and 32
Judiciary Act 1903 (Cth) s 78B
Land and Environment Court Act 1979 (NSW) s 25B
Statute Law (Miscellaneous Provisions) Act 2010 (NSW) (repealed)
Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) cl 15A
Environmental Planning Regulation 2000 (NSW) (repealed) cl 15A
State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) (repealed) cl 51
State Environmental Planning Policy (Housing) 2021 (NSW) cl 48
State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (NSW) (repealed)
State Environmental Planning Policy (Western Sydney Parklands) 2009 (NSW) (repealed)
State Environmental Planning Policy No 10 - Retention of Low-Cost Rental Accommodation (1984 EPI 600) (NSW) (repealed)
Sydney Regional Environmental Plan No 26 – City West (1992 EPI 564) (NSW) (repealed)
Uniform Civil Procedure Rules 2005 (NSW) r 59.10
Waverley Local Environmental Plan 2012 (NSW) (as at 27 September 2023)
Cases Cited: ADCO Constructions Pty Ltd v Goudappel ((2014) 254 CLR 1; [2014] HCA 18
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993]…
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- Case
- [2025] NSWLEC 19
- Decision Date
CaseChat Overview and Summary
The primary issue for the Court was whether the condition imposed on the development consent was outside the scope of the Council’s statutory powers. The applicants argued that the condition was not authorised by statute and exceeded the scope of the Council’s powers under the relevant planning legislation. The respondents argued that the condition was within the Council’s statutory powers.
The Court found that the condition was not authorised by statute and was therefore invalid. The Court held that the condition did not relate to the matters set out in the legislation and was therefore beyond the scope of the Council’s statutory powers. The Court further held that the condition was not authorised by any other relevant legislation. The Court also held that the invalidity of the condition did not affect the validity of the development consent itself. The Court ordered the invalid condition to be declared of no force or effect and ordered the respondents to pay the applicants’ costs.
Orders
Orders of the court
The Court:
(1) Declares that condition 10 of the development consent granted by the second respondent on 27 September 2023 in respect of development application no. DA-80/2023 lodged on behalf of the first and second applicant is invalid and of no force or effect.
(2) Orders the respondents to pay the applicants’ costs of these proceedings.
(3) Orders the parties to seek to have the proceedings relisted on a business date by no later than 14 days from the making of these orders for any further directions. Otherwise, the proceedings brought by the applicants are dismissed in their entirety.
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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