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[2004] NSWLEC 541
Land and Environment Court (NSW)
2001-10-08
Pain J
Original judgment source is linked above.
The Applicant is unsuccessful in relation to this ground. Summary 99 In relation to Grounds 1 and 2, the parties are required to make further submissions as to the appropriate orders the Court should make. I consider that it is appropriate that I list this matter for mention only in the week commencing 11 October 2004 so that a timetable for these further submissions can be set.
In relation to Ground 3, judgment is postponed pending finalisation of orders in relation to Grounds 1 and 2.
In relation to Grounds 4 and 5, the Applicant is unsuccessful. The following interlocutory order made by the Court on 20 November 2003 in relation to the AIR land is dissolved: The First Respondent, its employees, contractors, servants and agents are restrained from carrying out any work which involves the disturbance of any soil stockpiled on the land described as Lot 2 DP 595478, the AIR land, taken from the Sandon Point Construction Site Stages 2-6 and the taking of further soil to the AIR land from the Sandon Point Construction Site Stages 2-6 until the further order of this Court. Orders 100 The Court makes the following orders: 1. The interlocutory injunction issued by the Court on 20 November 2002 is dissolved. 2. The matter is listed for mention before me at 9:30 am on 13 October 2004. 3. The question of costs is reserved.
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Carriage
Stockland Development Pty Ltd & Ors
CITATION : Carriage v Stockland Development Pty Ltd & Ors [No 6] [2004] NSWLEC 541 APPLICANT Allen Carriage FIRST RESPONDENT Stockland Development Pty Limited PARTIES : SECOND RESPONDENT Director-General of the National Parks and Wildlife Service of New South Wales FIFTH RESPONDENT T G Gibson Pty Limited
FILE NUMBER(S) : 40863 of 2002 CORAM: Pain J KEY ISSUES: Judicial Review :- Validity of construction certificate - Reasonableness of certifier's decision - Compliance with development consent - Validity of permit granted under s 90(2) of the National Parks and Wildlife Act 1974 - denial of proceedual fairness and failure to take into account mandatory relevant considerations Environmental Planning and Assessment Act 1979, s 76A(1), s 80(12) LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000, cl 139(1)(a), cl 145(2) National Parks and Wildlife Act 1974, s 90, s 118A s 118D Wollongong Local Environmental Plan 1990 Carriage v Stockland (Constructors) Pty Ltd and Ors [2002] NSWLEC 216 ; Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84; Kioa v West (1985) 158 CLR 550; Lesnewski v Mosman Municipal Council and Anor [2004] NSWLEC 99 ; CASES CITED: Price v Elder (2000) 97 FCR 218; Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 195 ALR 502 ; Somerville v Dalby (1990) 69 LGRA 422 ; Stockland Constructors Pty Limited v Wollongong City Council and Anor, 8 October 2001, Unreported; Weal v Bathurst City Council (2000) 111 LGERA 181 29/03/2004 30/03/2004 31/03/2004 01/04/2004 02/04/2004 05/04/2004 DATES OF HEARING: 06/04/2004 08/04/2004 06/05/2004 15/05/2004 02/06/2004 03/06/2004 23/06/2004 28/06/2004 DATE OF JUDGMENT: 09/28/2004
13 Further, the Applicant argued the Fifth Respondent failed to take into account the hydrogeological study required by condition 42 of the Stages 2-6 Consent in issuing the construction certificates. The First and Fifth Respondents' Arguments 14 The First and Fifth Respondents argued that s 80(12) of the EP&A Act has the effect that the construction certificate becomes part of the development consent. Accordingly, the First and Fifth Respondents argued that if the construction certificates are valid there can be no argument that the work carried out on Lot 235 did not have development consent as the construction certificates clearly authorise the placing of the fill on Lot 235. 15 The First and Fifth Respondents argued that, in conformity with my decision in Lesnewski v Mosman Municipal Council and Anor [2004] NSWLEC 99, the Applicant can successfully challenge the validity of the construction certificates only by proving, on the balance of probabilities, that the decision reached by the Fifth Respondent to issue the construction certificates was unreasonable in accordance with the Wednesbury unreasonableness test. This is a very stringent test; see Weal v Bathurst City Council (2000) 111 LGERA 181.
(2000) 111 LGERA 84
(1985) 158 CLR 550
(2000) 97 FCR 218
(2003) 195 ALR 502
(2000) 111 LGERA 181
(1986) 162 CLR 24