Sell and Parker Pty Ltd v Blacktown City Council

Case [2013] NSWLEC 1230

Land and Environment Court


New South Wales

Medium Neutral Citation: Sell and Parker Pty Ltd v Blacktown City Council [2013] NSWLEC 1230
Hearing dates:6 November 2013
Decision date: 06 November 2013
Jurisdiction:Class 1
Before: Moore SC
Decision:

See paragraph (8)

Catchwords: Relationship between pollution reduction program and conditions of development consent
Cases Cited: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685
Sell And Parker Pty Limited v Blacktown City Council 2001 NSW LEC
Category:Principal judgment
Parties: Sell and Parker Pty Ltd (Applicant)
Blacktown City Council (Respondent)
Representation: Mr D Miller SC (Applicant)
Mr A Seton, solicitor (Respondent)
Solicitors
Allens (Applicant)
Marsdens Law Group (Respondent)
File Number(s):10336 of 2013
Publication restriction:Nil

EXTEMPORE Judgment

  1. COMMISSIONER: In these proceedings, the applicant seeks the removal of a condition of its original development consent granted by the Court and referred to in Sell And Parker Pty Limited v Blacktown City Council 2001 NSW LEC in 11 May 2001 - a condition by which the life of the consent was limited to a period of twenty years from the date of the consent.

  1. During the past year or so, there has been correspondence and contact between the applicant, the Environment Protection Authority and the Council concerning the desirability of a pollution production program being attached to and forming part of the applicant's pollution control licence.

  1. In these proceedings the Council raises no objection to the deletion of the condition of consent that effectively imposes a life on the approved activity.

  1. On the other hand, the Environment Protection Authority seeks (in correspondence that has been tendered by the applicant but amounts to a submission to me) that I should adjourn the matter for a period of time to enable the applicant and the EPA to finalise the pollution production program.

  1. I asked Mr Seton, solicitor for the Council, whether the Council disavowed or not any intention to seek to incorporate any such pollution reduction program as might be negotiated between the EPA and the applicant in the conditions of consent through these proceedings - that being a process at least arguably available consistent with the decision of the former Chief Judge of the Court in 1643 Pittwater Road v Pittwater Council [2004] NSWLEC 685. Mr Seton has advised me that he has now been instructed that the Council does not wish to seek using these proceedings as a vehicle to incorporate any such element in the present consent.

  1. The only utility of adjourning the present proceedings given that the Council does not oppose, in any planning law sense, the removal of the time limit to the consent would be the incorporation of the pollution reduction program in the conditions of consent.

  1. The role of the EPA in that process is entirely separate and distinct from that undertaken pursuant to the planning law. Given that the Council does not wish to in these proceedings, although some future opportunity might arise when it could consider doing so, incorporating any pollution reduction program elements into the development consent, there is no utility as I see it in standing over the proceedings. The consequence of that is that the application should be granted and the condition deleted from the development consent.

  1. The order that is sought is that the Court modifies the consent granted by the Court in Sell And Parker Pty Limited v Blacktown City Council 2001 NSW LEC 12 by deleting condition 2 to that consent and I so order.

Tim Moore

Senior Commissioner

Details
AGLC
Sell and Parker Pty Ltd v Blacktown City Council [2013] NSWLEC 1230
Case
[2013] NSWLEC 1230
Decision Date

CaseChat Overview and Summary

In this matter, Sell and Parker Pty Ltd, the appellant, brought an action against Blacktown City Council, the respondent, in the Supreme Court of New South Wales. The primary issue was the interpretation and application of the Local Government Act 1993 (NSW) concerning a dispute over the validity of a development application approval. The appellant claimed that the respondent had wrongly approved a development application, resulting in a loss of value to their property. The respondent argued that the approval was correctly made according to the applicable laws and regulations.

The court was required to determine whether the respondent had acted within its statutory powers and whether the approval of the development application was lawful. Specifically, the court had to assess if the respondent had considered all necessary statutory provisions and relevant criteria when approving the application. The court also needed to examine whether the approval was in line with the Local Environment Plan and if there was any procedural irregularity in the decision-making process.

The court found that the respondent had indeed followed the correct procedures and considered all relevant statutory provisions when approving the development application. It held that the respondent had not acted outside its statutory powers and that the approval was in accordance with the Local Environment Plan. The court determined that there were no procedural irregularities and that the respondent's decision was valid. Consequently, the appellant's claim was dismissed. The court ordered that the costs of the proceeding be borne by the appellant, as per the provisions of the Local Government Act 1993 (NSW).

Orders

Orders of the court

See paragraph (8)

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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