Carr v Minister for Land and Water Conservation

Carr v Minister for Land and Water Conservation - [2000] NSWLEC 89 - NSWLEC 1996 case summary — Zoe

[35]

Mr Larkin did, however, raise another issue. He submitted that the applicant does not now wish to carry out any clearing upon the site, neither in the areas which were the subject of the development application, nor in the areas which are the subject of the development consent. As it happens, there was no evidence that this is the applicant's current position, and, in a statement which was tendered in evidence, the applicant did not go so far as to say that he did not want any clearing at all. I am content to assume, however, for the purpose of dealing with Mr Larkin's submission, that the applicant does not now wish to clear any part of the site. In Mr Larkin's submission, the consequence of that fact must be that the Court should determine the development application by the refusal of consent. The Court could not grant development consent and impose conditions in circumstances where no development is proposed, because to do so would be to infringe the planning principle that conditions of consent must relate to the development which is proposed ( Newbury District Council v Secretary of State for the Environment [1980] 1 All ER 731). I think, however, that Mr Larkin's submission is misconceived. There is proposed development, and that is the development contemplated by the development application. It is that development which enlivens the Court's jurisdiction because, as I have previously explained, in a class 1 appeal the Court stands in the shoes of the consent authority and determines the development application afresh. I would only say that the fact that the applicant does not wish to carry out any clearing at all, despite the clearing contemplated by the development application, may be a fact for the Court to consider in the exercise of its discretion as to whether to grant or refuse consent, but it is not determinative and does not inevitably require the refusal of consent. I put aside this issue, therefore, and turn to the three merit issues I have earlier outlined.

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