Central Coast Council v 422 Pacific Highway Wyong Pty Ltd [2021] NSWLEC 64

Land and Environment Court New South Wales

Medium Neutral Citation: Central Coast Council v 422 Pacific Highway Wyong Pty Ltd [2021] NSWLEC 64 Hearing dates: 15 June 2021 Date of orders: 21 June 2021 Decision date: 21 June 2021 Jurisdiction: Class 4 Before: Moore J Decision: See declarations and order at [57] and [58] Catchwords: JUDICIAL REVIEW - First Respondent granted complying development certificate by Sixth Respondent for "landscaping material supplies" on land owned by Second to Fifth Respondents - certificate purported to authorise importation and placement of fill to a depth of 1.95 metres across the properties owned by Second to Fifth Respondents - Council seeks declaration that the certificate is invalid - necessity for engineer's certificate of structural stability a prerequisite mandated by cl 5A.27(3)(a) of State Environmental Planning Policy (Exempt And Complying Development Codes) 2008 - no engineer's certificate provided to Sixth Respondent - first basis of invalidity established - evidence the certificate was not issued by Sixth Respondent but by another certifier purporting to issue the certificate in Sixth Respondent's name - further basis of invalidity of certificate established - First Respondent submits to the making of a declaration of invalidity of the certificate - certificate declared invalid JUDICIAL REVIEW - First Respondent granted second complying development certificate by Sixth Respondent for "warehouse and distribution centre" on land owned by Second to Fifth Respondents - certificate purported to authorise importation and placement of fill to a depth of 1.95 metres across the properties owned by Second to Fifth Respondents - certificate also authorises construction of roadworks on the properties owned by the Second to Fifth Respondents and on an adjacent property - no owner's consent from the owner of the adjacent property provided to Sixth Respondent prior to the issuing of the second certificate - Council seeks declaration that the second certificate is invalid - owner's consent required from the owners of all property where work is to be carried out - absence of owner's consent for roadworks on land not owned by Second to Fifth Respondents renders second certificate invalid - First Respondent submits to making declaration of invalidity of second certificate - second certificate declared invalid DISCRETION - substantial volumes of fill placed by First Respondent relying on the first and/or second certificate - issues of relief on declarations of invalidity deferred to further hearing - directions made for further hearing Legislation Cited: Environmental Planning and Assessment Act 1979 Evidence Act 1995 (NSW), s 60 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cl 5A.27(3)(a) Wyong Local Environmental Plan 2013 Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 Category: Principal judgment Parties: Central Coast Council (Applicant) 422 Pacific Highway Wyong Pty Ltd (First Respondent) Yialkin Shevket (Second Respondent) Ozel Shevket (Third Respondent) Arja Leena Jortikka (Fourth Respondent) Jarmo Kari Tapio Jortikka (Fifth Respondent) William Dagger (Sixth Respondent) Representation: Counsel: Mr T To, barrister (Applicant) Ms A Johnstone, solicitor (First Respondent) Submitting appearance (Second and Third Respondents) Submitting appearance (Fourth and Fifth Respondents) Submitting appearance (Sixth Respondent)