Hawkesbury City Council v Sammut

In *Hawkesbury City Council v Sammut*, the Court of Appeal of New South Wales considered a dispute concerning a development consent granted by Hawkesbury City Council. The Council sought to challenge the validity of its own consent, which had permitted a development described as a "rural industry." The core of the dispute revolved around whether the Council had the legal power to grant such a consent at the time it was issued.

The primary legal issue before the Court was whether the development consent granted by the Council was *ultra vires* and therefore void *ab initio*. This question hinged on the interpretation of the relevant planning instruments at the time the consent was granted, specifically whether the definition of "industry" encompassed "rural industry" and if the Council possessed the authority to consent to such a development. A further issue was the effect of a subsequent amendment to the State Environmental Planning Policy which clarified the definition of "industry" to exclude "rural industry." The Court also had to determine if the Council was estopped from challenging the validity of its own consent.

The Court reasoned that at the time the consent was granted, the relevant planning instruments did not permit the Council to consent to a development that constituted an "industry." Consequently, the consent was void from its inception. The subsequent amendment to the State Environmental Planning Policy, which clarified the definition of "industry" to exclude "rural industry," was held not to have retrospective effect, meaning it could not validate a consent that was already void. The Court also found that the Council was not estopped from challenging the validity of its own consent, as it was acting in the public interest to rectify an unlawful act.

The Court of Appeal made declarations that the development consent was void and that the use of the land pursuant to that consent was prohibited.