Cranky Rock Road Action Group Inc. v Cowra Shire Council and Ors. [2005] NSWLEC 674 | Case summary

Land and Environment Court (NSW)|2005-09-08|Before: Bignold J, Mr P, Ms J

the applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly. 86 In my opinion the existence of these powers vested in a consent authority to which a development application has been made provide clear legislative indications that it is not the intention to invalidate a development application that is not accompanied by any of the documents required by cl 50(1)(a) (read with the provisions of Part 1 of Schedule 1 to the Regulation). Rather, faced with a development application that is not accompanied by any of the required documents the consent authority has the power under cl 51(b) to reject the application or alternatively the consent authority may request pursuant to cl 54(1) the applicant to provide the specified additional information (including "information relating to any relevant matter referred to in s 79C(1)(b)-(e)": vide cl 54(3)). These powers provide the consent authority with practical and decisive solutions to any perceived problem of an inadequate or defective development application. Their ready availability strongly negates any intended recourse to legal concepts of "nullity" or "invalid development applications". 87 The existence of these powers vested in the consent authority is a sufficient safeguard and weapon against inadequately presented development applications, leaving little or no occasion or scope for the concept of an invalid development application. (The only scope for the continuing utility of the concept of an invalid development application is sourced in the provisions of the EP&A Act, s 78A(8)(a) and (b) in respect of development applications to carry out designated development or development that is likely to significantly affect threatened species of flora or fauna, as was established by the Court of Appeal decisions in Helman and Timbarra.) 88 In relation to the power conferred by cl 54 for the consent authority to request additional information it is to be noted that in a similar statutory context, the Supreme Court of South Australia in City of Port Adelaide Enfield v Minister for Transport and Urban Planning (1999) 73 SASR 22 regarded the existence of the power for the consent authority to request additional information from an applicant as excluding any legislative intention that a failure to strictly comply with the statutory requirements prescribing the contents of a development application would invalidate a development consent. 89 A closer reading of the reasons of Debelle J in that case suggests that his decision goes no further than to interpret the relevant statutory requirements as requiring substantial (rather than strict) compliance, although Finkelstein J in Hall v Minister for Multicultural Affairs (2000) 59 ALD 458 at 462 appears to have taken a more expansive view of the decision in the South Australian case. See also "Statutory Interpretation in Australia (5th Ed) by Pearce and Geddes at par 11.29 where both these cases are cited as examples of "partial compliance" with statutory requirements. 90 If cl 54, considered in isolation, is not conclusive of the legislative intent to be inferred from the contents of the Regulation (Part 6 Div 1), the effect of cl 51 in my judgment is a far more compelling indication of the relevant legislative intention. If a consent authority, with the power to reject a development application on the ground that it is not accompanied by a required document (in the present case, a SEE) elects not to reject the application, but instead chooses to determine it, and does so by granting development consent, the compelling inference of legislative intent is that it is not intended that the development application (or the development consent emanating from it) be invalidated on account of the fact that the required document did not accompany the development application. 91 Accordingly, my consideration of the object and purpose of Regulation (Part 6 Div 1) confirms the legislative intention that I have earlier discerned from my consideration of the EP&A Act that invalidation of a development application (or a development consent emanating from it) is not the intended result of the development application not being accompanied by a SEE. Accordingly, I would reject this ground of alleged invalidity of the development consent. 92 Before leaving this subject there are two further matters that I would briefly mention for completeness (despite the fact that they were not referred to in the competing arguments). 93 The first matter concerns the fact that a SEE is only one of many documents that must accompany the development application. The mere fact that a very extensive range of documents (including a SEE) are required to accompany a development application itself provides another indication in the Regulation that contributes to a discernible legislative intent not to invalidate a development application that is not accompanied by one of those documents, for example a SEE, especially where that extensive range of documents is entirely undifferentiated in terms of ranking of the significance of each of the specified documents. (I exclude from this consideration the environmental impact statement and the species impact statement because as earlier noted the principal source of the requirements for these accompanying documents is the EP&A Act, s 78A(8).) It may be that the problem here adverted to, is to be solved by the application of the doctrine of substantial compliance being applied to the overall requirement (rather than to the individual components of it) in the sense that if, for example, all but one of the required documents accompanies a development application, the overall requirement is substantially complied with. 94 The second matter that I mention concerns the legal consequences of the Council's decision to proceed to determine the development application despite the absence of the SEE, and in particular raises the questions of waiver or estoppel that may arise from that fact. These questions are by no means novel in the context of an application to carry out development in accordance with town planning or building control legislation. Thus in Randwick Municipal Council v Broten (1964) LGRA 271 Else- Mitchell J sitting as the Land and Valuation Court considered the requirements of the Local Government Act 1919, s 312 that an application for (building) approval of the Council (a) shall be made….in the prescribed manner; (b) be accompanied by two copies of such plans and specifications as may be prescribed; and (c) be accompanied by the prescribed fee. 95 The Court was there dealing with an objection to the competency and jurisdiction of the Building Board of Appeal to determine an appeal on the ground that the building application was invalid because it had not been accompanied by a proper specification. 96 At 273, his Honour determined the objection to the competency of the appeal in the following manner: It will be seen, as Sugerman J said in Forrester's case [ (1954) 19 LGR 232], that the payment of the prescribed fee is a mandatory requirement to an application but that only such plans and specifications as are prescribed need accompany the application. This suggests that the requirement for submission of plans and specifications is directory only so that the failure to lodge them will not vitiate an application for approval and, indeed, the terms of Ordinance 71 support his view because cl. 4 of that ordinance gives a council power in certain circumstances (of which it alone is the judge) to dispense with the submission of plans and specifications. The matter, however, does not rest there for, as Mr Every-Burns freely conceded, the council considered the application and made a decision thereon without requiring specifications and when the appeal came before the Board of Appeal the council raised no objection to the Board's considering and determining it on the merits. In those circumstances I am clearly of opinion that the objection to jurisdiction and other arguments based upon the incompetency, invalidity or inadequacy of the application cannot succeed, for the council has waived strict compliance with requirements which in any event are not mandatory and it cannot be allowed at this stage to make submissions which are to the contrary of the course which it took of dealing with the application and allowing the Board of Appeal to hear an appeal from its decision without objection. I do not think it is necessary to characterize the legal ground upon which I have reached this conclusion, for whether it entails the application of rules of estoppel by representation, issue estoppel, or the principle of approbation and reprobation, the result is the same ( Macaura v Northern Assurance Co Ltd [(1929) ac 619]; Halsbury, 3rd ed. Vol. 15, pp. 171-172 and cases there cited). 97 One year later in Hornsby Shire Council v Devery (1965) 12 LGRA 34, his Honour sitting in the Supreme Court in Equity considered a similar question concerning a challenge to the validity of interim development application at the stage when an appeal was pending against the Council's refusal of the application. The relevant statutory provision (which was sourced in the model provisions to similar effect as those considered by Rath J in the Total Oil Refineries case that I have earlier referred to) required the application to be made in writing and to be accompanied by a "plan….sufficient to identify the land and particulars….sufficient to show the proposed development…." 98 Having held at 39 that the application suffered from the defect that the purpose for which the proposed building was to be used had not been properly designated in the development application, Else-Mitchell J proceeded in the following extended passage at 40 to consider the legal effect of the fact that council had nevertheless determined the application: No doubt there are cases of which Minahan v Baldock [(1951) 84 CLR 1] and Boulos v Broken Hill Theatres Pty Ltd [(1940) 78 CLR 177] are illustrations where the failure to perform a condition precedent or to conform with some preliminary requirement vitiates any determination made by an administrative, quasi-judicial or judicial body, but I do not think that this is the case under the provisions of the interim development order here in question. Whether a particular requirement is mandatory or not, it does not follow that the body making a determination will always be acting in excess of power if it decides to refuse or to grant an application which is defective and the determination it makes upon such an application may nevertheless be valid and effective for the purpose of founding rights in the appellant either to carry out the development or otherwise to use the land and buildings thereon in conformity with the permission granted, or to seek to set aside by some appellate process a refusal to allow the development sought or any other adverse decision. As I said in relation to a similar situation in Randwick MC v Broten [(1964) 10 LGRA 271] it is not necessary to characterize the legal ground for such a conclusion; it may be some form of estoppel or entail some analogous principle, or it may stem from the right of the body in question to determine for itself whether the conditions precedent to the exercise of its power have arisen ( cf. Posner v Collector for Interstate Destitute Persons (Vict.) [(1946) 74 CLR 461; and the fact that the council is not a Court but an administrative body which is a party to any proceedings by way of appeal under s 342v [5] seems to me to fortify its right to waive, as a party to litigation usually may (and expressly or impliedly), any condition precedent or preliminary requirement for the exercise of its powers. In Randwick M.C. v Broten the waiver or estoppel arose from the conduct of the council in itself considering the application and later opposing an appeal to a Board of Appeal under Pt. XI of the Act. In the present case the council considered the application without objection, informed Mr Devery of its decision and the reasons therefor, and later furnished the State Planning Authority, under cover of a letter of 7th April 1965, with a list of particulars of the application and its decision thereon in none of which was an assertion made of the deficiency of the application; this likewise seems to me to constitute a waiver of any defect and amounts to an acknowledgment of the completeness of the interim development application. These conclusions of course have no bearing upon the question whether a council is obliged to entertain or give a decision upon an incomplete or defective application; plainly if it refused to do so upon the ground that sufficient plans, maps or particulars had not been furnished, a Court would not compel it to do so by mandamus. But where as here, it has elected to treat as complete and valid and regular an application which is deficient, I think that it cannot subsequently seek to deprive an applicant of the rights, positive or negative which flow from the grant or refusal of any necessary consent for which the application was made. 99 The doctrines of "waiver" and "estoppel" as applied by Else-Mitchell J in these two cases from the 1960s have been more recently authoritatively expounded and developed by the High Court in the separate reasons for judgment given by each of its seven Justices in the Commonwealth of Australia v Verwayen (1990) 170 CLR 394. 100 It is not necessary for me in the present case to delve more deeply into this complex subject, it being sufficient I think to say of the two decisions of Else-Mitchell J, that both the analysis of the then relevant statutory requirements for the making of a building or development application and the application of the doctrines of "waiver" and/or "estoppel" to the conduct of the council in those cases, in determining the applications despite their non-compliance with the relevant statutory requirements, appear to me to have continuing relevance to the current relevant statutory provisions contained in the EP&A Act and the Regulation that are relevant to the present case and to the Council's conduct in the present case. 101 Of course in the present case it is not the Council that is raising the issue of invalidity of the development consent based upon the absence of the SEE from the development application. Accordingly, and conformably to the exposition of the doctrine of waiver in Verwayen, in the present case any question whether the Council by its conduct has waived the relevant statutory requirement would be dependent upon the prior conclusion that the statutory requirement was not for the wider public benefit (than that element of the public interest of which the Council as the consent authority, is the representative and guardian in terms of the EP&A Act). As my evaluation of the object and purpose of the requirement for a SEE to accompany a development has revealed (see especially at pars 78 and 79) prima facie the Council is capable of waiving compliance with the statutory requirement. 102 For all of the foregoing reasons, I would hold that the development consent granted by the Council is not invalid or void on account of the fact that the relevant development application had not been accompanied by the required SEE.

(ii) Alleged failure of the Council to consider cl 14(4) of the LEP 103 The terms of cl 14 are set out at par 42 of these reasons. 104 On its proper construction, cl 14 imposes limits on the power otherwise conferred by the LEP upon the Council to grant development consent for the subdivision of land within Zone No 1(a), where (as is the present case) that land is not "prime agricultural land". Such relevant power is conferred by the combined operation of cl 9 as it applies to land Zone No 1(a) and of cl 10. (Each of those clauses is also recited in par 42 of these reasons). 105 The additional limits imposed by cl 14 on the Council's power to grant development consent for the subdivision are twofold. 106 Firstly, by virtue of the combined operation of subclauses (2) and (3), there is the prohibition on the creation of an allotment having an area of less than 2 hectares where that allotment is to be used for the purposes of a dwelling-house (existing or proposed). Secondly, cl 14(4) qualifies the operation of subdivisions (2) and (3) by prohibiting the grant of such a consent unless the Council "is satisfied that the lot sizes permit the siting of dwelling-houses so that they are unlikely to inhibit or give rise to complaints about normal farming practice….etc". (It is to be noted that a separate development consent is required for the erection of a dwelling-house on a lot created in an approved subdivision of land zoned 1(a): vide cl 17 of the LEP.) 107 Accordingly, the overall effect of cl 14 is to limit or restrict the Council's power to grant development consent to the subdivision of relevantly zoned land by subjecting the stipulation that 2 hectares is the minimum size of the creation of a lot intended to be used for the purpose of a dwelling-house (existing or proposed) to the overriding requirement that the Council be satisfied that the sizes of the proposed lots be sufficient to permit the siting of dwelling-houses so that they are unlikely to inhibit or give rise to complaints about normal farming practice etc. 108 The Applicant's allegation that the Council failed to consider cl 14(4) of the LEP blatantly flies in the face of the documentary evidence that I have earlier summarised concerning the manner in which the Council processed the development application. That evidence shows that the principal issue raised by the objectors concerned the relationship between the subject land (proposed to be subdivided into 28 lots with sizes ranging from 6 to 29 hectares and with an average lot size of about 10 hectares) and adjoining or adjacent lands using for agricultural purposes. In raising that issue, at least one of the written objections relied expressly and specifically upon cl 14(4) of the LEP. The evidence also shows that each of the proposed lots having a common boundary with adjoining farm lands incorporated a 150 metre wide buffer from the common bound and that the sizes of the relevant lots ranged between 7 and 21 hectares. 109 The evidence also shows that conditions 11, 35 and 53 of the development consent required the creation of a public positive covenant/restriction on user precluding the erection of a dwelling-house on the buffer lands in deference to the conduct of adjoining/adjacent farming practices (see pars 27 and 28 of these reasons). 110 The documentary evidence clearly establishes that the Council, the developer and the resident objectors were fully aware of the relevant requirements of the LEP and the DCP concerning the proper physical relationship between land proposed for rural/residential subdivision and adjacent and adjoining lands used for agricultural purposes where the relevant requirements accorded some measure of priority or precedence to the uninhibited continuation of normal farming practices. 111 The documentary evidence overwhelmingly supports the inference which I draw, that the Council relevantly considered cl 14(4) of the LEP and was relevantly satisfied that the sizes of the proposed lots would permit the sitings thereon of dwelling houses so that they (ie the dwelling-houses so sited) were unlikely to inhibit or give rise to complaints about normal farming practice. 112 Even if the documentary evidence had been confined (which it was not) to the contents of (i) the development application; and (ii) the development consent; and (iii) the LEP and DCP the fact that the subdivision plan provided for the creation of the buffer 150 m wide from the common boundaries with adjoining farming properties combined with the fact that the development consent imposed the specific conditions requiring the creation of public positive covenants/restrictions or use in respect of those buffers (which facts were further explained by the relevant requirements of the DCP (recited in par 44 of these reasons) would have been sufficient in themselves to justify the drawing of the inference that the Council properly considered cl 14(4) of the LEP and formed the relevant satisfaction that is required by that provision. 113 However, when regard is had to the entire evidence, including the extended processes undertaken by the Council by fully engaging in debate and dialogue with resident objectors in the course of processing the development application, the Applicant's allegation that the Council failed to consider cl 14(4) of the LEP not only is left unsubstantiated but is shown to be groundless complaint. The present case is entirely distinguishable on its facts from the several decisions of the Court of Appeal relied upon by the Applicant which decisions are collected and discussed in Manly Council v Hortis (2001) 113 LGERA 321. Since these decisions depend upon their own facts there is no need for me to discuss those cases here. They have no real bearing on the present case. 114 For all of the foregoing reasons, I would reject this ground of alleged invalidity of the development consent.

(iii) Alleged failure of the Council to consider the DCP 115 The Applicant's allegation is confined to cl 2.1(c)(iv) of the DCP which is one of a number of "general policies" propounded by cl 2.1 (the terms of which are recited in par 44 of these reasons). 116 The documentary evidence that I have earlier summarised clearly indicates that the issue of the spread of noxious plants and feral animals from the future development of the proposed subdivision was strongly raised as one of the grounds for resident objections. It also indicates that the Council considered the issue that had been raised but concluded that it was not a sufficient reason to refuse the development application and that if an increased risk of noxious weed and feral animal infestation eventuated that problem would be dealt with by the Rural Lands Protection Board. 117 The relevant provision of the DCP is expressed in cl 2.1 as a "general policy" which is aimed at "minimising any adverse effects on adjoining lands". Moreover, cl 1.2 of the DCP indicates that where a proposed development does not comply with a relevant policy or guideline "it will be considered and may be approved by the Council, depending on the circumstances". These provisions, by their very terms and nature, do not impose inflexible obligations and clearly fall far short of the type of provision that was considered by the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 to provide "a fundamental element in or a focal point of, the decision-making process" (at 387 per Spigelman CJ). 118 The Applicant's submission that the Council's reliance upon other legislative controls (eg the Rural Lands Protection Act) indicated a failure of the Council to give real or genuine or proper consideration to the relevant provisions of the DCP, is in my judgment legally unsustainable. 119 I am satisfied on the documentary evidence that the Council relevantly considered the DCP on the issue of the potential risk of the spread of increased noxious weeds and feral animals. The fact that its consideration of this issue included some reliance being reposed in other relevant legislation (eg the Rural Lands Protection Act 1989 and the Noxious Weeds Act 1993) does not derogate from the genuineness or effectiveness of that consideration. The detailed and specialised regimes provided by that legislation necessarily transcends as a matter of practical implementation, the general scope of the EP&A Act in relation to the particular problems of controlling noxious weeds and feral animals that may arise in an approved rural/residential subdivision. 120 Moreover, having regard to the true effect of the DCP proper consideration of it would not dictate or require a result different from that which was yielded by the Council's consideration of it, even if there be a real risk of the adverse impacts materialising. 121 Finally, I am bound to say that even if the Applicant had substantiated its claim that the Council had failed to consider the DCP cl 2.1(c)(iv), that failure would not, in my judgment, have justified of itself, the setting aside of the Council's determination granting development consent, because in truth, the particular provision of the DCP is so insignificant that a failure to have considered it could not have materially affected the Council's decision: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J. 122 Accordingly, I must reject this allegation of invalidity.

(iv) The alleged failure of the Council to consider the impacts of the proposed development from feral animals and noxious weeds 123 This allegation is very closely related to the allegation of the Council's failure to consider the DCP. 124 For many of the same reasons that I have given in rejecting the related allegation I would likewise reject this ground. 125 In particular, I am satisfied on the evidence that the Council did consider these potential impacts of the proposed development, but concluded, as it was entitled to in the exercise of its discretionary planning judgment, that the risks of the increased spread of noxious weeds and feral animals were not of such weight, as to justify refusal of the development application. 126 In so concluding, the Council's reliance upon the capacity for a remedy to be provided pursuant to the implementation of the specialised legislation that I have referred to, was reasonable in the circumstances and did not betray any failure on the part of the Council to give genuine and real consideration to the relevant matters. The facts of the present case are very far removed from the facts that led the majority of the Court of Appeal in Weal v Bathurst City Council (2000) 111LGERA 181 to conclude that the requisite consideration of the environmental impact (the emission of noise) of the development in that case had not been given by the consent authority resulting in a declaration of invalidity of the development consent that had been granted. 127 Again, I would have concluded, if, contrary to what I have held, the Applicant had substantiated its allegation of relevant failure by the Council to consider the particular aspects of environmental impact, that the legal consequence would not justify setting aside the Council's determination granting the development consent: see Peko-Wallsend. 128 Accordingly, I would reject this allegation of invalidity.

(v) The alleged failure of the Council to consider the public submissions raising concerns about the impacts from noxious weeds and feral animals. 129 Again, this ground is very closely related to the last mentioned allegation and for the same reasons that I have given in rejecting that ground I would likewise reject the present ground. 130 What clearly emerges from the documentary evidence that I have earlier summarised is the very generous opportunity accorded by the Council to resident objectors to be notified of the proposed development, to submit their written objections, to address the Council in open forum, to accompany the Council on the relevant site inspections and to be similarly involved in the process of the Council's review of its original determination. 131 In the face of this evidence (and there was no suggestion that the processes were not genuine) for the Applicant to allege that the Council failed to consider the resident objections, does less than justice to the Council's generous policy and practice in favour of public participation in the development assessment process and to the manner that the Council determined the development application by granting the development consent subject to conditions. 132 Accordingly, I would reject this allegation of invalidity. E. CONCLUSIONS AND ORDERS 133 For all of the foregoing reasons the Applicant has failed to establish any of its allegations of invalidity of the development consent, and accordingly its class 4 application must be dismissed. Although the question of costs has not been argued, the dismissal of the application in consequence of my rejection of each and every allegation of invalidity justifies an order for dismissal with costs unless the Applicant moves within 7 days for a different costs order. 134 This result means that it is not strictly necessary for me to adjudicate upon the several defences that were raised by the Respondents in the event of the Applicant substantiating its case of invalidity of the development consent. 135 However, there is one aspect of the case concerning the defence based upon the EP&A Act, s 101 which I think I should briefly refer to, in deference to the arguments that were advanced upon a discrete point, which I understand has not previously been judicially decided. 136 The discrete point, I think can be sufficiently isolated by assuming in favour of the Respondents that the protection provided by s 101 had been relevantly enlivened in respect of the Council's original determination granting development consent. Upon that assumption (which is disputed by the Applicant because of a non-compliance with the Regulation cl 124(1)(c) occurring in the public notice given in respect of the Council's original determination) the question in dispute is whether the protection conferred by s 101 extends to the development consent granted by the Council pursuant to its review in accordance with the EP&A Act, s 82A of its original determination. 137 The EP&A Act, s 101 is in the following terms: Validity of development consents and complying development certificates If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given. 138 It is common ground that the present proceedings were commenced more than three months after the date of the relevant notice that was given in respect of the original development consent. It is also common ground that the present proceedings were commenced within the period of three months from the date of the separate relevant notice that was given in respect of the development consent granted by the Council pursuant to its statutory review under s 82A. 139 The relevant question to be asked in respect of the disputed issue is whether as a matter of construction the reference in s 101 to a "consent" is capable of extending to a consent that has later been reviewed pursuant to s 82A at a time after s 101 has been enlivened to protect the validity of that original consent from legal challenge. 140 The proper construction of s 101 in such circumstances is apt to depend upon the precise and particular outcome of that review having regard to the nature and extent of the power vested in the Council by s 82A. Thus, in a case where that outcome is limited to the variation of a condition or conditions of the consent, it may be assumed that s 101 (properly construed) will apply to the consent "as varied". But where (as in the present case) the outcome of the review is the grant of development consent, properly construed, s 101 will not apply to that outcome because it has "replaced" the original consent by virtue of s 82A(9). In these circumstances, the protection of the "original" consent is simply not relevant to the "replacement" consent, the two consents being entirely separate entities. 141 On the facts of the present case, the outcome of the statutory review was the grant of the development consent and accordingly, that replacement consent, is not protected by s 101, to the extent that it had been enlivened by virtue of the public notice given in respect of the original development consent. (Whether, despite the apparent factual outcome, a different legal result was achieved by the Council's review pursuant to s 82A (eg a variation of the conditions of the original consent) has not been debated in the present case where the parties appear to have proceeded on the common assumption that the outcome of the Council's review was the grant of the development consent). 142 In these circumstances, I would hold that the reference to "consent" in s 101 does not extend to the replacement consent which was the outcome of the Council's statutory review that was undertaken pursuant to the EP&A Act, s 82A. For these reasons I would not have upheld the Respondents' s 101 defence in the present case. 143 In leaving the Respondents' s 101 defence, I would only wish to say that I can see no justification whatsoever for applying the Project Blue Sky approach to the question of any non-compliance with the requirements of the Regulation prescribed in respect of the public notice referred to in s 101. If there is a material non-compliance with requirements of the Regulation (as appears to be conceded in the present case), there is simply no scope for the operation of s 101, because the condition precedent for its operation (the giving of public notice "in accordance with the regulations") has simply not been fulfilled. In these circumstances, the legislature has not been silent on the question of non-compliance with the relevant statutory requirements. Hence, there is no occasion to apply the Project Blue Sky approach to the construction of s 101 or of cl 124 of the Regulation in order to discern any unstated legislative intent. For this additional reason I would have rejected the Respondents' s 101 defence. 144 For all of the foregoing reasons, I make the following orders:

The class 4 application is dismissed. 2. The exhibits may be returned. 3. The Applicant shall pay the Respondents' costs in the sum agreed, or failing agreement, as assessed. 4. Order 3 ceases to have effect if within 7 days of these orders the Applicant, by Notice of Motion seeks a different costs order, in which event the question of costs is reserved.

24/07/2008 - inserted omitted paragraphs 1-141 - Paragraph(s) 1-141

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Cranky Rock Road Action Group Inc. v Cowra Shire Council and Ors. [2005] NSWLEC 674 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

(2000) 111 LGERA 446

(2000) 107 LGERA 308

(2001) 113 LGERA 321

(2001) 115 LGERA 373

Cranky Rock Road Action Group Inc. v Cowra Shire Council and Ors.

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