Minister for Planning v Bega Valley Shire Council and Boydtown Pty Limited [2006] NSWLEC 529

Land and Environment Court of New South Wales

CITATION : Minister for Planning v Bega Valley Shire Council and Boydtown Pty Limited [2006] NSWLEC 529

APPLICANT Minister for Planning

PARTIES : FIRST RESPONDENT Bega Valley Shire Council

SECOND RESPONDENT Boydtown Pty Limited

FILE NUMBER(S) : 40295 of 2006

CORAM: Talbot J

KEY ISSUES: Development Consent :- proper consent authority for application to modify development consent

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 28/07/2006, 18/08/2006 (written submissions)

DATE OF JUDGMENT: 08/25/2006

APPLICANT Ms S A Duggan (barrister) SOLICITORS Department of Planning

FIRST RESPONDENT LEGAL REPRESENTATIVES: submitting SOLICITORS M E McMahon & Associates

SECOND RESPONDENT submitting SOLICITORS Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot J

25 August 2006

40295 of 2006 Minister for Planning v Bega Valley Shire Council and Boydtown Pty Limited

JUDGMENT 1 Talbot J: In its Points of Claim the Minister refers to the history of a development application lodged by the second respondent in September 1989 and determined by the Minister following a Commission of Inquiry on 5 November 1990. Building, engineering or construction physically commenced in accordance with the consent in November 1995. In September 2005 the second respondent submitted an application purporting to be pursuant to s 96 of the Environmental Planning and Assessment Act 1979 ("EP&A Act") to the council. On 11 January 2006 the council purported to approve the application under s 96. The Minister claims that the first respondent was not the consent authority empowered to modify the development consent pursuant to s 96(2) of the EP&A Act as the purported approval was not granted in respect of a consent granted by the first respondent. 2 A further claim is made that the purported approval related to development that was not substantially the same development as that to which the original development consent related in breach of s 96(2)(a). Moreover and in the alternative, the purported approval of the s 96 application was unreasonable in the Wednesbury sense. 3 The first and second respondents have entered submitting appearances. Written submissions have been received from Ms Duggan, counsel for the applicant Minister. Ms Duggan reiterates and relies upon the above facts, which have not been disputed by either respondent. 4 There is no argument that the Minister became the consent authority in respect of the development application pursuant to s 101(11) of the EP&A Act (now see s 76A(9)) following a direction made that the development application be referred for determination by him in February 1990. Section 101(3)(a), as it then was, provided that a consent authority other than the Minister could not determine any development application to which a direction applied. Section 102(3) of the EP&A Act had the effect that the Minister remained the consent authority for the purposes of an application for modification of the development consent. 5 The development the subject of the development application was state significant development by dint of cl 17 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998. The marina development the subject of the development consent remains state significant development now covered by Part 3A of the EP&A Act as a consequence of the inclusion of marina developments in cl 6 and Sch 1 of State Environmental Planning Policy (Major Projects) 2005. 6 Accordingly the Minister has been the consent authority at all material times. Under s 96 of the EP&A Act the consent authority that granted consent has power to modify the development consent. 7 It is alleged by the applicant and acknowledged by the respondents that the development as modified was not substantially the same as that to which the original development consent related for the following reasons: