Bennett v Hurstville City Council [2012] NSWLEC 108

Land and Environment Court New South Wales

Medium Neutral Citation: Bennett v Hurstville City Council [2012] NSWLEC 108 Decision date: 14 May 2012 Jurisdiction: Class 4 Before: Biscoe J Decision: Declaration that development consent invalid. Consequential injunctions. Catchwords: JUDICIAL REVIEW:- whether development consent invalid for procedural unfairness. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 79A, 79C Land and Environment Court Act 1979, s 25B Hurstville Development Control Plan No 1, cll 2.2.2.1, 2.2.3.1, 2.2.3.2, 4.6 Cases Cited: Lesnewski v Mosman Municipal Council [2005] NSWCA 99, 138 LGERA 207 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6, 214 CLR 1 Category: Principal judgment Parties: Bruce Allan Bennett (Applicant) Hurstville City Council (First Respondent) Gordon Anderson (Second Respondent) Daniel Garry Stewart (Third Respondent) Melanie Jameson (Fourth Respondent) Representation: COUNSEL: Mr C Ireland (Applicant) Submitting appearance (First - Fourth Respondents) SOLICITORS: TWR Law (Applicant) HWL Ebsworth (First Respondent) Susan Hill & Associates (Second - Fourth Respondents) File Number(s): 40979 of 2011

Judgment 1The applicant in these undefended judicial review proceedings challenges the validity of a development consent 2011/DA-00102 granted by the council, the first respondent, to the second respondent on 18 July 2011 for alterations and additions to the third and fourth respondents' dwelling at 2A Cook St, Mortdale. 2The applicant's house at 105 Victoria Ave, Mortdale adjoins and is set to the south west of the subject land. 3The grounds of the applicant's challenge to the consent are the following: (a)denial of procedural fairness; (b)failure to take into account a mandatory relevant consideration (impact on the applicant's home) under s 79C of the Environmental Planning and Assessment Act 1979 (EPA Act), and Wednesbury unreasonableness in the resulting consent (or illogicality and irrationality in the application of s 79C); and (c)failure to have regard to the applicable parts of cl 4.6 of the Hurstville Development Control Plan No 1 (DCP) as a mandatory relevant consideration pursuant to s 79C(1)(a)(iii), and as a fundamental matter required by law. 4The relief sought is that the consent be declared invalid, and that work in reliance on it be restrained. 5The respondents have filed submitting appearances. 6It is well established that the Court will not necessarily grant declaratory relief by consent or merely because of the absence of a contravener, and that a declaration should only be granted on the basis of evidence and submissions. Accordingly, the applicant does not submit that the submitting appearance of the Council in itself entitles the applicant to the declaratory relief it seeks. The Court must be satisfied of the utility of granting a declaration, and also that the relevant material has been put before it to allow a considered decision on the facts and law. I am satisfied as to these matters on the substantial documentary and affidavit evidence before me and the applicant's submissions.