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Land and Environment Court
New South Wales

Medium Neutral Citation:
Western Sydney Conservation Alliance Incorporated v Penrith City Council [2012] NSWLEC 109
Hearing dates:
15 May 2012
Decision date:
15 May 2012
Jurisdiction:
Class 4
Before:
Biscoe J
Decision:

Orders pursuant to s 25C(2) of the Land and Environment court Act 1979

Catchwords:
JUDICIAL REVIEW:- orders previously made pursuant to s 25B Land and Environment Court Act 1979 suspending operation of development consents and that they be validated when the consent authority has regard to a specified matter - consent authority now applies for orders under s 25C.
Legislation Cited:
Environmental Planning and Assessment Act 1979 s 103
Land and Environment Court Act 1979 ss 25B, 25C(2)
Cases Cited:
Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43
Western Sydney Conservation Alliance v Penrith City Council [2011] NSWLEC 244
Western Sydney Conservation Alliance Incorporated v Penrith City Council [2012] NSWLEC 99
Category:
Principal judgment
Parties:
Western Sydney Conservation Alliance Incorporated (Applicant)
Penrith City Council (First Respondent)
Maryland Development Company Pty Ltd (Second Respondent)
St Marys Land Limited (Third Respondent)
Representation:
COUNSEL:
Mr C Norton (Applicant)
Mr A M Pickles (First Respondent)
Mr T March, solicitor (Second and Third Respondents)
SOLICITORS:
Environmental Defender's Office (Applicant)
Sparke Helmore (First Respondent)
Allens (Second and Third Respondents)
File Number(s):
40873 of 2011

EX TEMPORE Judgment

1I am now determining a motion by the first respondent, Penrith City Council, for orders pursuant to s 25C(2) of the Land and Environment Court Act 1979. The motion flows from actions of the council taken to satisfy an order under s 25B made on 16 December 2011 in Western Sydney Conservation Alliance v Penrith City Council [2011] NSWLEC 244 per Moore AJ.

2In these proceedings the applicant challenged the validity of certain development consents granted by the council on 15 August 2011. Pursuant to s 25B of the Land and Environment Court Act, Moore AJ suspended the operation of the development consents and by Order 3 ordered that "The consents be validated upon the first respondent [the council] having regard to the details of the Cumberland Plain Recovery Plan gazetted 18 February 2011". I had occasion to consider the appropriate form of orders under s 25B in Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43 at [30] - [49].

3The evidence indicates that the council has had the regard to which Order 3 refers. In addition, on 11 April 2012 it resolved to approve the development applications to which the consents related, subject to certain conditions. Those conditions included one condition which was additional to the conditions of the original consents that had been challenged. In other words, the council took the course of regranting the consents with an alteration.

4The council's s 25C(2) motion first came before me on 4 May 2012 when it was stood over to today to enable the council to revoke the suspended consents, which it had overlooked doing: Western Sydney Conservation Alliance Incorporated v Penrith City Council [2012] NSWLEC 99. That revocation has now occurred.

5Section 25C of the Land and Environment Court Act provides as follows:

25C Orders for validity of development consents
(1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant development consent be regranted with alterations, the Court may make an order:
    (a) declaring that the terms have been substantially complied with, and
    (b) declaring that the consent is valid, and
    (c) revoking the order of suspension.
(2) On application by the Minister or any other consent authority for an order under this subsection on the ground that the terms specified under section 25B have been substantially complied with and that the development consent has been regranted with alterations as referred to in section 103 of the Environmental Planning and Assessment Act 1979, the Court may make an order:
    (a) declaring that the terms have been complied with, and
    (b) declaring that the development consent has been validly regranted, and
    (c) declaring that the suspended development consent has been revoked, and
    (d) revoking the order of suspension.

6Pursuant to subsection 25C(2), I am satisfied that the terms specified under s 25B have been complied with and that the development consents have been regranted with alterations as referred to in s 103 of the Environmental Planning and Assessment Act 1979. Accordingly, in the exercise of my discretion and by consent, I propose to make the orders referred to in that subsection.

7By consent, I make orders as follows in accordance with the short minutes of order dated 15 May 2012, which I sign and place with the Court papers:

(1)Declaration under s 25C(2)(a) of the Land and Environment Court Act 1979 ("the Act") that the terms of Order 3 made by Moore AJ on 16 December 2011 have been complied with.

(2)Declaration under s 25C(2)(b) of the Act that development consents DA11/0514, DA11/0515, DA11/0516 and DA11/0517 granted by the first respondent on 11 April 2012 have been validly regranted.

(3)Declaration under s 25C(2)(c) of the Act that the development consents suspended by Order 1 made by Moore AJ on 16 December 2011 have been revoked.

(4)Orders under s 25C(2)(d) of the Act that Order 1 made by Moore AJ on 16 December 2011 be revoked.

(5)Release the second and third respondents from the undertaking noted in Order 7 made by Moore AJ on 16 December 2011.

(6)The exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Decision last updated: 17 May 2012