Kindimindi Investments Pty Ltd v Lane Cove Council

Kindimindi Investments Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court concerning the validity of a development consent granted by Lane Cove Council. The primary dispute revolved around the scope of the Land and Environment Court's power under section 25B of the *Land and Environment Court Act 1979* (NSW) to make orders that would validate an otherwise invalid development consent.

The central legal issue before the Court of Appeal was whether the power to make orders under section 25B of the *Land and Environment Court Act 1979* was limited to cases where the invalidity of a development consent arose from steps preliminary to its granting, as suggested by the appellant, or if it extended to other types of invalidity. This question required the court to interpret the interplay between section 25A(1) and section 25A(2) of the Act, and to consider the broader legislative intent behind the Division.

The Court of Appeal, in dismissing the appeal, reasoned that while section 25A(2) referred to invalidity arising from preliminary steps, the use of the word "extends" indicated that this was not an exhaustive limitation. The court found no logical reason to restrict the remedial power to only preliminary procedural breaches, noting that other technical breaches could also affect the validity of a consent. Furthermore, the court considered that section 25E, which requires the court to consider making orders under the Division in relation to all development consents falling within section 25A(1), supported a broader interpretation. The court concluded that section 25A(2) was likely inserted out of an abundance of caution.

The appeal was dismissed with costs.