Land and Environment Court New South Wales

• Medium Neutral Citation: Western Sydney Conservation Alliance Incorporated v Penrith City Council [2012] NSWLEC 99
• Hearing dates: 4 May 2012
• Decision date: 04 May 2012
• Jurisdiction: Class 4
• Before: Biscoe J

Decision

The hearing of the notice of motion filed by the first respondent on 20 April 2012 is adjourned part heard to 25 May 2012 before Biscoe J.

• Catchwords: PRACTICE AND PROCEDURE:- motion for orders under s 25C Land and Environment Court Act 1979 - hearing of motion adjourned to enable Council to attend to revocation of suspended development consents where the Council had regranted the consents with alterations.
• Legislation Cited: Environmental Planning and Assessment Act 1979 s 103; Land and Environment Court Act 1979 ss 25B, 25C(2)
• Cases Cited: Western Sydney Conservation Alliance v Penrith City Council [2011] NSWLEC 244
• Category: Procedural and other rulings
• 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 Respondents); Allens (Second and Third Respondents)
• File Number(s): 40873 of 2011

EX TEMPORE Judgment

1 I am dealing with a motion by the first respondent Penrith City Council for orders pursuant to s 25C(2) of the Land and Environment Court Act 1979 consequential upon actions of the Council pursuant to orders under s 25B made by Moore AJ on 16 December 2011 in Western Sydney Conservation Alliance v Penrith City Council [2011] NSWLEC 244.

2 The applicant challenged the validity of certain development consents which were granted on 15 August 2011. Pursuant to s 25B, his Honour suspended the operation of the development consents and (inter alia) 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". The evidence indicates that the Council has had the regard to which Order 3 refers. The Council took the course of regranting the development consents with an alteration which I am informed was in the form of a condition.

3 At the hearing of the motion it emerged that the Council had not revoked the suspended development consents. The provisions of s 25C(2), under which this motion is brought, contemplate that in the event of a regrant with alterations as referred to in s 103 of the Environmental Planning and Assessment Act 1979, the Court would make a declaration that the suspended development consents have been revoked. The Council's omission to revoke appears to have been inadvertent. The Council intends to attend to the revocation at its next meeting on 21 May 2012. Therefore, on the application of the Council, and by consent, I propose to adjourn the hearing of the motion to 25 May 2012.

4 Two further points require clarification. Firstly, the judgment of Moore AJ at [116] notes in Order 7 an undertaking given to the Court by the second and third respondents not to carry out development pursuant to the development consents which were under challenge. Order 7 erroneously omits the concluding words of the undertaking "until further order": see the undertaking to the Court as recorded in short minutes of order of 13 December 2011. Secondly, I am informed that the Council has assigned the regranted development consents the same numbers as the old development consents, those numbers being referred to in the undertaking. It should be understood that the undertaking does not extend to not carrying out development pursuant to the regranted development consents. I say this in order to avoid any confusion that might otherwise arise from the unfortunate fact that the Council assigned the same numbers to the regranted development consents.

5 The order of the Court is that the hearing of the notice of motion filed by the first respondent on 20 April 2012 is adjourned part heard to 25 May 2012 before Biscoe J.

Decision last updated: 10 May 2012