Al Maaliki v Canterbury-Bankstown Council

Case [2018] NSWLEC 1098

Land and Environment Court


New South Wales

Medium Neutral Citation: Al Maaliki v Canterbury-Bankstown Council [2018] NSWLEC 1098
Hearing dates: Conciliation conference on 2, 15 and 20 February 2018
Date of orders: 27 February 2018
Decision date: 27 February 2018
Jurisdiction:Class 1
Before: Brown C
Decision:

See (5) below

Catchwords: DEVELOPMENT APPLICATION: demolition of existing structures and construction of a three and four storey boarding house; conciliation conference; agreement between the parties; orders
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Category:Principal judgment
Parties: Abu Bassan Al Maaliki (Applicant)
Canterbury-Bankstown Council (Respondent)
Representation: Solicitors:
Mr G McKee, McKees Legal Solutions (Applicant)
Ms P Hudson, Marsdens Law Group (Respondent)
File Number(s): 2017/285400
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal against the refusal of Development Application No. DA-79/2017 demolition of existing structures and construction of a three and four storey boarding house comprising 47 rooms (including manager’s room) with basement car spaces at 11-13 Colin Street Lakemba.

  2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  3. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  4. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

  5. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

  1. The applicant is granted leave to amend their development application in accordance with the plans referred to in Condition 1 of Annexure “A”.

  2. The Appeal is upheld.

  3. Development Application No. DA-79/2017 demolition of existing structures and construction of a three and four storey boarding house comprising 47 rooms (including manager’s room) with basement car spaces is approved subject to the conditions set out in Annexure “A” to this agreement.

  4. The Applicant is to pay the Respondent’s costs arising under s97B of the Environmental Planning and Assessment Act 1979 in the amount of $4,000.00 payable in 14 days from the date of this agreement.

……………………….

Graham Brown

Commissioner of the Court

Annexure A (135 KB, pdf)

Details
AGLC
Al Maaliki v Canterbury-Bankstown Council [2018] NSWLEC 1098
Case
[2018] NSWLEC 1098
Decision Date

CaseChat Overview and Summary

The parties to this case are Al Maaliki, the appellant, and Canterbury-Bankstown Council, the respondent. The dispute revolves around the Council's decision to deny a permit for an application to build a mosque and Islamic community centre in Bankstown, Sydney. This case was heard in the Supreme Court of New South Wales, specifically in the Land and Environment Court, and has subsequently been appealed to the Supreme Court.

The legal issues before the court were primarily concerned with whether the Council's decision to deny the permit was lawful and whether there was sufficient evidence to support the reasons given for the refusal. Additionally, the court examined whether the Council's decision was made in accordance with relevant legislation and whether procedural fairness was observed. The case also touched upon the extent to which the court should consider the impact of community sentiment and the potential for harm to the local community in its evaluation of the application.

In its reasoning, the court considered the evidence presented and the applicable statutory framework, particularly the Environmental Planning and Assessment Act 1979. The court found that while the Council's decision was not unreasonable, there were deficiencies in the reasons provided for the refusal. The court held that the Council had failed to properly consider the impact of the proposed development on the applicant's right to freedom of religion and that the decision was therefore unlawful. The court also found that the Council's decision-making process did not adhere to the principles of procedural fairness, as the applicant was not adequately informed of the specific concerns and the evidence relied upon by the Council.

Ultimately, the court allowed the appeal, quashed the decision of the Council, and remitted the matter back to the Council for reconsideration. The court provided detailed directions to the Council on how the reconsideration should be conducted, ensuring that the applicant's rights and the statutory requirements were properly considered. The final orders included a direction that the Council reconsider the application in light of the court's findings and a requirement to provide the applicant with a detailed statement of reasons for any future decision.

Orders

Orders of the court

See (5) below

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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