Reference no: EM133539054
As you know, we act for Sally Archer in relation to her challenge to the validity of development consent granted for the construction of a swimming pool on her neighbour's land. Since I last spoke with you, Sally instructed me to make an application to the Land and Environment Court (LEC) to have the development consent declared wholly invalid. That application was filed.
The Land and Environment Court made consent orders for the parties to attend a mediation in order to resolve the dispute. After each party nominated 3 mediators with various experience and costs, they finally agreed on Ms Jaruselski, Senior Counsel who has practiced in this area for many years.
The mediation is set down for [7 days from today]. The parties have agreed that the cost of the mediation will be split equally. It is estimated it will last half a day at the mediator's chambers in Sydney.
The council and Mr Potts will also be represented by solicitors, with all parties to attend in person.
To prepare for the mediation I would like you to analyse the following issues:
1. As council has refused to revoke or modify the development consent under s 4.57 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), please explain what options are available to our client to have the council or court review, modify or set aside the development consent and any time limits applicable. Please also indicate the reasons why Sally is not allowed to request a formal review by the council (EPA Act s 8.3) and why a merits review by the LEC (see EPA Act ss 8.7 and 8.14) is also not available?
2. Explain the grounds on which Sally is entitled to make an application to the court, the class of jurisdiction and the remedies available. Please refer to any documents you think are important.
3. Explain what evidence Sally would need and why you believe Sally's case would be successful if it proceeds to a hearing at the LEC (while acknowledging any deficiencies).
4. Cost can often be a deterrent, so please explain the situation about costs in the LEC and, in your opinion, why Sally would be entitled to a costs order if she was successful there.
5. As you have formed the view that Sally has a good case, please explain what appeal options would be available to her should her application to the LEC be unsuccessful?
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