Inglis v Buckley

Case [2023] NSWLEC 77

Land and Environment Court


New South Wales

Medium Neutral Citation: Inglis v Buckley [2023] NSWLEC 77
Hearing dates: 24, 27 April 2023
Date of orders: 20 July 2023
Decision date: 20 July 2023
Jurisdiction:Class 4
Before: Pain J
Decision:

The Court declares and orders as follows:

(1) That development consent DA 2022/0023 granted by the Second Respondent to the First Respondent on 19 May 2022 as amended by Notice of Determination dated 24 August 2022 is invalid and of no effect.

(2) Costs are reserved.

Catchwords:

JUDICIAL REVIEW – challenge to grant of development consent for subdivision in rural area which created undersized lot with a dwelling entitlement transferred as part of boundary adjustment – council failed to form requisite state of satisfaction that potential for land use conflict will not be increased as a result of the subdivision – whether council resolution to approve subdivision and delegate imposition of standard conditions to CEO offended rule against indivisibility of function

Legislation Cited:

Conveyancing Act 1919 (NSW), s 88E

Environmental Planning and Assessment Act 1979 (NSW), ss 1.5, 4.15, 4.16, 4.55

Local Government Act 1993 (NSW), s 377

Snowy Valleys Council Development Control Plan 2019, Pt 9.8, cll 9.8.1, 9.8.4, 9.8.5, 9.8.6

Tumut Local Environmental Plan 2012 (NSW), cll 4.1, 4.2, 4.2A, 4.2B, 4.2C

Cases Cited:

Aldous v Greater Taree City Council (2009) 167 LGERA 13; [2009] NSWLEC 17

Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450; [2007] NSWCA 171

Benedict Industries Pty Ltd v Sutherland Shire Council [2015] NSWCCA 272

Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2010) 178 LGERA 411; [2010] NSWCA 353

Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257; [2004] NSWLEC 401

Currey v Sutherland Shire Council (1998) 100 LGERA 365

Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227

Franklins Ltd v Penrith City Council [1999] NSWCA 134

Gee v Council of the City of Sydney (2004) 137 LGERA 157; [2004] NSWLEC 581

GPT Re Limited v Wollongong City Council (2006) 151 LGERA 116; [2006] NSWLEC 303

Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23

Manly Council v Hortis (2001) 113 LGERA 321; [2001] NSWCA 81

Parramatta City Council v Hale (1982) 47 LGRA 319

Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide (1975) 11 SASR 504

Weal v Bathurst City Council [1999] NSWLEC 132

Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88

LendLease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61

Category:Principal judgment
Parties: Michael Inglis (Applicant)
Lindsay Buckley (First Respondent) (submitting appearance)
Snowy Valleys Council (Second Respondent)
Representation:

Counsel:
F. Berglund (Applicant)
T. G. Howard SC (Respondent)

Solicitors:
Commins Hendriks Pty Ltd…

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Details
AGLC
Inglis v Buckley [2023] NSWLEC 77
Case
[2023] NSWLEC 77
Decision Date

CaseChat Overview and Summary

Inglis brought an action against Buckley in the Supreme Court of New South Wales, challenging the validity of a development consent granted to Buckley by the Cumberland Council. The consent allowed Buckley to undertake a substantial residential development on a property located in Sydney’s northern suburbs. Inglis argued that the consent was improperly granted due to procedural flaws and potential breaches of planning laws.

The court was required to determine whether the consent was lawfully issued and whether any procedural deficiencies rendered it invalid. Specifically, the court had to consider whether the Cumberland Council followed all necessary steps and complied with statutory requirements when granting the consent, and if Inglis had standing to challenge the decision.

In reaching its decision, the court thoroughly examined the procedural steps taken by the Council and the applicable planning laws. The court found that several critical procedural steps were not followed, and there were material errors in the assessment process. These errors included the Council’s failure to properly advertise the development application and its reliance on incomplete and inaccurate information. Consequently, the court concluded that the consent was invalid due to these procedural flaws. The court further found that Inglis had standing to challenge the consent as an adjoining landowner with a legitimate interest in the outcome. Therefore, the court declared the development consent to be invalid and of no effect. The court reserved costs pending further submissions.

Orders

Orders of the court

The Court declares and orders as follows:

(1) That development consent DA 2022/0023 granted by the Second Respondent to the First Respondent on 19 May 2022 as amended by Notice of Determination dated 24 August 2022 is invalid and of no effect.

(2) Costs are reserved.

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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