COALCLIFF COMMUNITY ASSOCIATION INC v MINISTER FOR URBAN AFFAIRS AND PLANNING & ORS [1999] NSWCA 317

Reported Decision : 106 LGERA 243

New South Wales Court of Appeal CITATION : COALCLIFF COMMUNITY ASSOCIATION INC v MINISTER FOR URBAN AFFAIRS AND PLANNING & ORS [1999] NSWCA 317 FILE NUMBER(S) : CA 40660/97 HEARING DATE(S) : 21 - 22 July 1999 JUDGMENT DATE : 31 August 1999

Coalcliff Community Association Inc (Appellant) Minister for Urban Affairs and Planning (1st Respondent) PARTIES : Wollongong City Council (2nd Respondent) Metropolitan Collieries Ltd (3rd Respondent) Kembla Coal and Coke Ltd (4th Respondent) JUDGMENT OF : Meagher JA at 1; Stein JA at 2; Hodgson CJinEq at 91

LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT FILE NUMBER(S) : LEC 40047/96 LOWER COURT JUDICIAL OFFICER : Talbot J

P.W. Larkin/M. Green (Appellant) M.J. Leeming (1st Respondent) COUNSEL : C.W. McEwen/ A. Pickles (2nd Respondent) J. Robson (3rd Respondent) N. Hemmings QC (Solicitor) (4th Respondent) Environmental Defenders Office (Appellant) Department of Urban Affairs and Planning (1st Respondent) SOLICITORS : Peedom Brodie and Ward (2nd Respondent) Blake Dawson Waldron (3rd Respondent) Allen Allen & Hemsley (4th Respondent) CATCHWORDS : LAND AND ENVIRONMENT COURT - whether development consent had lapsed by virtue of s 99 Environmental Planning and Assessment Act 1979 - s 102 application for modification of consent - discretion to refuse to grant declaratory relief in respect of lapse of consent ACTS CITED : Environmental Planning and Assessment Act 1979 s 99, s 102, s 124 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Irongates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 Wollongong City Council v AIS (1998) 67 LGRA 51 ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 Irongates Pty Ltd v Richmond River Shire Council (unreported, Land and Environment Court, 6 March 1997) Hannan Pty Ltd v Elcom (No 3) (1985) 66 LGRA 306 CASES CITED: House v The King (1936) 55 CLR 499 Lovell v Lovell (1950) 81 CLR 513 Smith v East Elloe Rural District Council [1956] AC 736 The Minister v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Tynan v Meharg (1998) 101 LGERA 255 Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 Fernando v Commissioner of Police (1995) 36 NSWLR 567 Transport Action Group Against Motorways Inc v RTA [1999] NSWCA 196 DECISION : Appeal upheld with costs; Orders 5 - 8 made by Talbot J set aside; In addition to orders 1 - 4 made by Talbot J, the following orders made. Declare that the development consent granted by the first respondent (the Minister) on or about 8 November 1983 had lapsed pursuant to s 99 of the Environmental Planning and Assessment Act 1979; Declare that the fourth respondent (Kembla) has breached conditions 4, 5, 13 and 39 of the development consent; Declare that the modification of the development consent by the second respondent (Council) on or about 11 December 1995 is a nullity; Respondents to pay Appellant's costs of proceedings in the Land and Environment Court.