Key Takeaways
- Section 4.15 of the Environmental Planning and Assessment Act 1979 (NSW) (‘EP&A Act’) sets out the factors that must be taken into consideration by a consent authority when determining a development application (‘DA’).
- Duggan J found the Council’s consent to the amended DA was invalid because it failed to consider the mandatory considerations of s4.15.
Background
Reulie Land Co (‘Reulie’) sought to challenge the validity of a consent for a staged development proposal granted by the Third Respondent, Wingecarribee Shire Council (‘Council’) to the First Respondent, Lee Environmental Planning Pty Limited (‘Lee’).
The proposal concerned the construction of a house located on the property owned by the Second Respondent, Lasovase Pty Limited (Lasovase). The site was across the road from Reulie’s property. The Council assured Reulie that the DA would not cause adverse view loss.
Later, the amended and approved DA was approved by Council, but Reulie was not notified of the amendment prior to the approval.
Judgment
Reulie argued that:
- The Council failed to take into account the mandatory considerations of s4.15, particularly with respect to view impacts, amenity and privacy; and
- Council was required to renotify the amended DA.
Determination of Issue One
Section 4.15 of the EPA Act provides that the Council must take into account mandatory and relevant considerations, namely:
- The Council’s Rural Lands development control plan;
- The likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality; and
- The impacts of the amended DA on bushfire and neighbouring properties.
The Court found that:
- Council did not appear to be aware of the relationship between the amended DA and the Applicant’s land.
- The Council’s approval of the amended DA was founded on a fundamental misunderstanding of the location of the development.
- The Council failed to adequately take into account the mandatory considerations.
Determination of Issue Two
The Court found that:
- Under cl 78 of the EP&A Act and the council’s notification policy contained provisions regarding notification.
- They only identified circumstances when notification amendments were not required.
- There was a potential for additional adverse impact, therefore note none of the exceptions applied.
- Renotification was required.
Outcome
The Court found the Council’s consent was invalid and of no effect. The First and Second Respondents were restrained from carrying out the development.
The full judgement can be found at the following link: Reulie Land Co Pty Limited v Lee Environmental Planning Pty Limited and Ors [2019] NSWLEC 194
Disclaimer: Beatty Hughes & Associates acted for the Applicant in these proceedings.