King, Markwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505
PARTIES:
Proceedings 41465 of 2005 APPLICANT Christina King RESPONDENT Bathurst Regional Council
Proceedings 41466 of 2005 APPLICANTS Jeffrey Markwick & Faye Markwick RESPONDENT Bathurst Regional Council
Proceedings 41467 of 2005 APPLICANTS Fred Taylor and Margaret Taylor RESPONDENT Bathurst Regional Council
Proceedings 10041 of 2006 APPLICANTS Jeffrey Markwick and Faye Markwick RESPONDENT Bathurst Regional Council
Proceedings 10042 of 2006 APPLICANT Christina King RESPONDENT Bathurst Regional Council
FILE NUMBER(S):
41465 of 2005; 41466 of 2005; 41467 of 2005; 10041 of 2006; 10042 of 2006
CORAM:
Jagot J
KEY ISSUES:
Judicial Review :- s 94 contribution conditions - not authorised by contributions plan - modification of development consents to delete s 94 contribution conditions and require roadworks - whether Council was satisfied that proposed modification of minimal environment impact and development as modified substantially the same development - severance
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
King v Bathurst Regional Council [2006] NSWLEC 505
Case
[2006] NSWLEC 505
Decision Date
CaseChat Overview and Summary
The applicants in this case, Christina King, Jeffrey and Faye Markwick, and Fred and Margaret Taylor, were the owners of land in Yetholme in the Bathurst Regional Council area. They challenged conditions imposed on their subdivision consents under the Environmental Planning and Assessment Act 1979 (NSW), and orders made under section 121B of the Act. The Bathurst Regional Council conceded that the conditions imposed on the original subdivision consents were invalid, but submitted that its subsequent modification of those consents was within power. The applicants argued that the Council had exceeded its powers in modifying the consents, and that the Council's imposition of roadwork conditions was unlawful. The Court found that the Council had not turned its mind to the statutory requirements of s 96(1A) of the Act, and that the Council's modification of the consents was therefore invalid. The Court also found that the Council had no power to impose roadwork conditions on the modification approvals, and that the Council's imposition of such conditions was unlawful. The Court further found that the applicants were entitled to relief in the exercise of its discretion. The Court declared invalid the modification approvals, the s 94 conditions imposed on the original consents, and the s 121B orders served on the Markwicks and Ms King. The Court dismissed the appeals against the s 121B orders. Costs were to be argued in all the proceedings.