Mulpha FKP Pty Ltd v The Hills Shire Council [2012] NSWLEC 101

Land and Environment Court New South Wales

Medium Neutral Citation: Mulpha FKP Pty Ltd v The Hills Shire Council [2012] NSWLEC 101 Hearing dates: 2-3 May 2012 Decision date: 09 May 2012 Jurisdiction: Class 4 Before: Biscoe J Decision: (1) The respondent by 23 May 2012 is to decide whether the surrender the subject of the applicant's notice of voluntary surrender of development consent DA 2100/2007/ZA delivered to the respondent on or about 26 August 2011, will or will not have an adverse impact on any third party or the locality, and: (a) if the decision is that it will not, is to give the applicant the notification referred to in cl 97(4)(a) of the Environmental Planning and Assessment Regulation 2000, or (b) if the decision is that it will, is to inform the applicant of its decision and that, consequently, it will not give that notification. Catchwords: JUDICIAL REVIEW:- surrender of development consent - more than 8 months after notice of voluntary surrender of development consent, council had not decided whether to issue statutory notification required to give it effect - whether council under a duty to exercise statutory notification function - if so, whether reasonable time for exercising function had expired - appropriate relief. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4(4), 80, 80A, 94, 95, 104A, 124 Land and Environment Court Act 1979 s 22 Baulkham Hills Local Environmental Plan 2005 cl 45A Environmental Planning and Assessment Regulation 2000 cl 97 Cases Cited: Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 61, 182 CLR 51 Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22, 209 CLR 478 Goldie v Commonwealth of Australia [2002] FCA 261 Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 Metropolitan Coal Co of Sydney Ltd v Australian Coal and Shale Employees' Federation [1917] HCA 64, 24 CLR 85 Randall v The Council of the Town of Northcote [1910] HCA 25, 11 CLR 100 Texts Cited: Department of Planning, Interim Land Release Contribution Policy (October 2005) DC Pearce and RS Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis Butterworths Category: Principal judgment Parties: Mulpha FKP Pty Ltd (Applicant) The Hills Shire Council (Respondent) Representation: COUNSEL: Ms S Duggan SC and Mr M Seymour (Applicant) Mr A Galasso SC and Mr M Fraser (Respondent) SOLICITORS: Gadens Lawyers (Applicant) The Hills Shire Council (Respondent) File Number(s): 40252 of 2012