Recently the Court of Appeal held that a section 34 agreement
(and subsequent approval by the Court) was invalid for two
reasons:
- An owner of land affected by the DA did not provide consent;
and
- The Commissioner failed to indicate in her judgment that she
had considered a clause 4.6 request relating to the
development.
While both these grounds may seem fairly obvious, as always
there is more to the story.
No consent and failure to record reasons result in lack of
jurisdiction
Both deficiencies above remove the jurisdiction of the Land and
Environment Court ('LEC') to consent to the proposed
development. The LEC can only approve a decision or agreement
reached between the parties that is a decision that the court could
have made in the proper exercise of its functions.
