Franklins Limited v Penrith City Council and Campbells Cash & Carry Pty Limited

[1999] NSWCA 134

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Failure to consider mandatory relevant consideration
4. › Pre-condition to exercise of statutory power
5. › Whether consent authority formed requisite satisfaction before granting development consent
6. › Environmental Planning and Assessment Act 1979 (NSW), s 90
1. Administrative Law
2. › Judicial review
3. › Presumption of regularity
4. › Whether presumption applies where existence of mental state is essential condition to exercise of power
1. Planning and Environment Law
2. › Development consent
3. › Validity
4. › Local Environmental Plan imposing pre-condition to consent
5. › Whether Council satisfied pre-condition in cl 32(2) of LEP 231
6. › Whether amendments by Parliamentary Counsel materially altered Council's obligations
1. Evidence
2. › Inferences
3. › Failure to call evidence
4. › Jones v Dunkel inference
5. › Whether inference of failure to consider should be drawn against consent authority

Quick Take

Where a local environmental plan imposes a pre-condition requiring a consent authority to form a positive satisfaction before granting development consent, the presumption of regularity does not apply to support an inference that the pre-condition was considered. The absence of any documentary reference to the pre-condition, combined with the failure to call evidence from officers or councillors, supports an inference that the pre-condition was not considered, rendering the consent invalid.