Chambers v Maclean Shire Council & 2 Ors [2003] NSWCA 100

Reported Decision : (2003) 126 LGERA 7 57 NSWLR 152

New South Wales Court of Appeal

CITATION : Chambers v Maclean Shire Council & 2 Ors [2003] NSWCA 100 HEARING DATE(S) : 04/04/03 JUDGMENT DATE : 13 June 2003

JUDGMENT OF : Sheller JA at 1; Giles JA at 2; Ipp JA at 7 DECISION : (1) The amendment sought by Ms Chambers to the notice of appeal be allowed (2) The appeal be allowed (3) The orders made by Sheahan J be set aside (4) A declaration be made that, as at 11 July 2001, the development of Lot 12 Deposited Plan 1009500 School Road, Palmers Island as a prawn farm and research station was a prohibited development (5) A declaration be made that the development application lodged by Mr and Mrs Smith and the development consent LDA No 2000/0585 issued to Mr and Mrs Smith by the Council on 11 July 2001 for the establishment of a prawn farm and research station is void and of no effect (6) The Council and Mr and Mrs Smith pay Ms Chambers' costs of the appeal (7) The Council and Mr and Mrs Smith to have a certificate under the Suitors Fund Act if otherwise entitled (8) The Council to pay Ms Chambers' costs of the proceedings in the Land and Environment Court.

CATCHWORDS : Appeal from review proceedings - Whether final or interlocutory order made - Construction of SEPP 62 - Meaning of the term "area" in cl 4 of Schedule 1 to SEPP 62 - Jurisdictional nature of classifying a development as prohibited under the Environmental Planning and Assessment Act 1979 - Council's power to consent to a prohibited development - Procedure by which a prohibited development may be the subject of a development application - Effect of SEPP 62: sustainable Aquaculture (Amendment No 1) - Request for Land and Environment Court to exercise its discretion. D Environmental Planning and Assessment Act 1979, ss 4, 76(1), 76A(1) 76B, 77, 78A(1), 89(1), 89(2), 100A(2), 101 LEGISLATION CITED : Land and Environment Court Act 1979, ss 20(1)(c), 20(2)(b) Local Government Act 1993 Surveyors Act 1929, s 23(1) Becker v Marion City Corporation [1977] AC 271 Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 Continental Liquers Pty Limited v G F Heublein & Bros Inc (1960) 103 CLR 422 Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 CASES CITED : Hawkesbury City Council v Sammut (2002) 119 LGERA 171 Hope v Bathurst City Council (1980) 144 CLR 1 Londish v Knox Grammar School (1997) 97 LGERA 1 Maxwell v Murphy (1957) 96 CLR 261 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 Anita Chambers (Claimant) PARTIES : Maclean Shire Council (First Opponent) Paul Smith (Second Opponent) Yumi Smith (Third Opponent) FILE NUMBER(S) : CA 40392/02 T F Robertson SC (Claimant) COUNSEL : J B Maston (First Opponent) Paul Smith (In Person) Sylvia Winters (Claimant) SOLICITORS : Pickering Priestley (First Opponent) Paul Smith (In Person)