KINDIMINDI INVESTMENTS PTY LTD v LANE COVE COUNCIL & ANOR [2006] NSWCA 23

Reported Decision : 143 LGERA 277

New South Wales Court of Appeal

CITATION: KINDIMINDI INVESTMENTS PTY LTD v LANE COVE COUNCIL & ANOR [2006] NSWCA 23

HEARING DATE(S): 30 January 2006, 31 January 2006

JUDGMENT DATE: 21 February 2006

JUDGMENT OF: Handley JA at 1; Basten JA at 2; Hunt AJA at 107

DECISION: (1) Appeal upheld and decision of the Land and Environment Court set aside; (2) Remit matter to the Land and Environment Court for further consideration according to law, including as to the costs of the original hearing and any further hearing; (3) Order the Respondents to pay 50% of the costs of the Appellant of the appeal, and; (4) If either of the Respondents is eligible for a certificate under the Suitors Fund Act, give leave to it to make application in chambers for such a certificate within 14 days of the date of this judgment

CATCHWORDS: ADMINISTRATIVE LAW – challenge to development consent issued under Environmental Planning and Assessment Act 1979 (NSW) – measures taken to ensure pedestrian safety included in private deed between council and developer – measures did not constitute legally enforceable obligations – conditions imposed on development – whether conditions invalid for uncertainty – whether possibility of a significantly different development - whether conditions invalid for non-compliance with the s79C of the Act – whether there was a lack of time to consider the development application properly – whether the Council failed to apply its 'collegiate mind' to the application – whether the Council failed to consider the impact of the development upon the School - constructive failure to exercise the power

Environmental Planning and Assessment Act 1979 (NSW), s79C, s80A, s123 LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 (NSW) clauses 1, 2, 50(1)(a) Equal Opportunity Act 1984 (WA). Land and Environment Court Act 1979 (NSW), s 25B