Kindimindi Investments Pty Ltd v Lane Cove Council

Kindimindi Investments Pty Ltd (the Appellant) appealed to the Supreme Court of New South Wales against a decision of the Land and Environment Court concerning a development consent issued by Lane Cove Council (the Council) to the Appellant. The dispute centred on whether the conditions attached to the development consent, particularly those relating to pedestrian safety and impact on a neighbouring school, were validly imposed.

The primary legal issues before the Court were whether the development consent was invalid due to uncertainty in its conditions, whether the Council failed to comply with the requirements of section 79C of the Environmental Planning and Assessment Act 1979 (NSW), and whether there was a constructive failure by the Council to exercise its planning functions. Specifically, the Court considered whether the Council had adequately addressed the significant adverse social impact on a neighbouring public school and whether the mechanism used to secure ameliorating measures, a private deed with the developer, was a proper substitute for imposing conditions on the development consent.

The Court reasoned that while the Council had considered the impact on the school and accepted the need for ameliorating measures, its error lay in failing to impose these requirements as conditions of the development consent under the Environmental Planning and Assessment Act 1979. The Court found that the private deed, while not an irrelevant consideration, was not a legally enforceable substitute for a condition. This failure to incorporate the intended constraint through a condition constituted a constructive failure to exercise the Council's statutory power, rendering the consent invalid in a significant respect, by analogy with the decision in *Hale*. The Court noted that other challenges to the consent's validity had been correctly dismissed by the trial judge.

The Court upheld the appeal, setting aside the decision of the Land and Environment Court. The matter was remitted to the Land and Environment Court for further consideration, including as to costs. The Respondents were ordered to pay 50% of the Appellant's costs of the appeal, with leave granted for eligible Respondents to apply for a certificate under the Suitors Fund Act.