Land and Environment Court of New South Wales CITATION : Warriewood Properties Pty Limited v Forbes Shire Council & Anor [2008] NSWLEC 222 Warriewood Properties Pty Limited (Applicant) PARTIES : Forbes Shire Council (First Respondent) Walt Coulston (Second Respondent) FILE NUMBER(S) : 40500 of 2008 CORAM: Jagot J KEY ISSUES: Judicial Review :- party with benefit of consent admitted facts giving rise to invalidity of consent - declaration of invalidity made on admitted facts and documentary evidence DATES OF HEARING: 18/7/2008 EX TEMPORE JUDGMENT DATE : 18 July 2008 APPLICANT Mr P J O'Brien (solicitor) SOLICITORS Harris & Company FIRST RESPONDENT Ms J McCullan (solicitor) LEGAL REPRESENTATIVES: SOLICITORS Marsdens Law Group SECOND RESPONDENT Mr T To SOLICITORS Gadens JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Jagot J 18 July 2008 40500 of 2008 WARRIEWOOD PROPERTIES PTY LIMITED Applicant FORBES SHIRE COUNCIL First Respondent WALT COULSTON Second Respondent JUDGMENT Jagot J: 1 These are class 4 proceedings in which the applicant seeks a declaration that development consent 2008/0048 granted by the first respondent to the second respondent on 21 February 2008 is void and of no effect and consequential orders. 2 The first respondent is the Forbes Shire Council (the Council). The Council has entered a submitting appearance to the proceedings and thus is not present at this hearing. The second respondent is the person with the benefit of the development consent sought to be impugned by the applicant. The second respondent admits invalidity of the consent on a particular ground. Accordingly, the matter has proceeded before me today on that basis. 3 The evidence that has been adduced consists of admissions by the second respondent. The second respondent admits the facts asserted in paragraphs 8 and 9 and the first sentence of paragraph 11 of the points of claim filed by the applicant on 27 June 2008. More relevantly for present purposes the second respondent paragraphs 30, 31 and 32 of the points of claim on the basis that the latter paragraph is amended to read: The land is flood liable land being situated in the high hazard flood storage and low hazard flood storage flood risk precincts as defined as in clause 2.3 of DCP 6. 4 Paragraphs 30, 31 and 32 of the points of claim (as amended) record that there were instruments in force required to be taken into consideration by the Council when determining the development application for a proposed supermarket. Those provisions included cl 10 of the Forbes Local Environmental Plan 1986. Clause 10 states in subcl (1) that: A person shall not erect a building or carry out a work on flood liable land without the prior consent of the Council. 5 Clause 10(2) states that: The Council shall not consent to the erection of a building or the carrying out of a work on flood liable land unless: (a) the development is in accordance with a development control plan prepared by the Council in consultation with the Water Resources Commission, and (b) the Council is satisfied that the development will not unduly restrict the passage of water down the floodway. 6 It is common ground that Forbes Development Control Plan No 6 (Managing Our Flood Risks) is a development control plan prepared by the Council in consultation with the Water Resources Commission as referred to in cl 10(2)(a) of the LEP. 7 Accordingly, it being admitted that the relevant land is flood liable land, the Council was not able to consent to the erection of the proposed supermarket unless the development was in accordance with the terms of DCP 6. 8 Clause 3.1 of the DCP required a development application to include information that addressed all relevant controls in DCP 6. The parties tendered the flood report that accompanied the development application and the report to the Council in respect of the development application dated 21 February 2008. It is apparent from that report and the documents supporting the development application that the information put before the Council addressed Sch 3 and 4 of DCP 6. However, there is no reference in either of the documents to certain prescriptive controls relating to the presence of fencing as set out in paragraphs 2.4.3 and 2.5.3 of DCP 6. 9 The second respondent admits that the proposed development contains barrier fencing. The documents tendered thus establish that the application did not include information addressing all relevant controls because the fencing issue. Further, in order for the development to be in accordance with DCP 6 as required by cl 10(2), at the very least, the Council needed to consider the prescriptive controls in paragraphs 2.4.3 and 2.5.3 of the DCP. Given the terms of the flood study as submitted and the report to the Council, the inference that should be drawn on the evidence is that the Council did not consider those matters. Accordingly cl 10(2) of the LEP could not have been satisfied before the grant of development consent. 10 For these reasons I am satisfied that the development consent granted by the Council on 21 February 2008 is void and of no effect and I propose to make an order to that effect. [The parties addressed on costs] Orders The Court: (1) Declares that development consent dated 21 February 2008 granted by the first respondent to the second respondent in respect of development application 2008/0048 for the demolition of existing buildings and construction of supermarket, associated signage and car parking is void and of no effect. (2) Reserves costs. (3) Directs that any application for costs is to be made within 21 days by exercising liberty to restore on 3 days' notice (so that no notice of motion is required for the costs issue to be resolved). (4) Returns the exhibits. (5) Vacates the hearing date of 18-19 August 2008. **************************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.