Andrews v Botany Bay City Council - [2008] NSWLEC 96

Reported Decision: (2008) 158 LGERA 451

Land and Environment Court

of New South Wales

CITATION: Andrews v Botany Bay City Council [2008] NSWLEC 96
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT:
George Andrews
RESPONDENT:
Botany Bay City Council

FILE NUMBER(S): 10622 of 2007

CORAM: Biscoe J

KEY ISSUES: Development Consent :- appeal from Commissioner's modification of condition of consent - condition that overhead service cables be placed underground - whether valid - whether Commissioner gave proper, genuine, and realistic consideration to development control plan standard requiring overhead service cables to be placed underground - whether a finding by Commissioner was procedurally unfair - whether Commissioner should be disqualified from hearing remitter

LEGISLATION CITED: Mascot Station Precinct Development Control Plan 2004
Environmental Planning and Assessment Act 1979 (NSW)
Land and Environment Court Act 1979 (NSW)

CASES CITED: Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229
Andrews v Botany Bay City Council [2007] NSWLEC 716
Baulkham Hills Shire Council v Basemount (2003) 126 LGERA 339
Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52
Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53
Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41
Lloyd v Robinson (1962) 107 CLR 142
MCC Energy Pty Ltd v Wyong Shire Council (2006) 149 LGERA 59
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Optus Networks Pty Ltd v Rockdale City Council [2005] FCA 200
Save Our Street Inc v Settree (2006) 149 LGERA 30
Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING: 25 February 2008

DATE OF JUDGMENT:
29 February 2008

LEGAL REPRESENTATIVES:
APPLICANT:
Mr P Rigg, Solicitor
SOLICITORS:
Deacons
RESPONDENT:
Mr T S Hale SC
SOLICITORS:
Houston Dearn O'Connor

JUDGMENT:

THE LAND AND

ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

29 February 2008

10622 of 2007

GEORGE ANDREWS v BOTANY BAY CITY COUNCIL

JUDGMENT

1 HIS HONOUR: This is an appeal on questions of law under s 56A of the Land and Environment Court Act 1979 against a decision of a Commissioner of this Court modifying a condition of a development consent: Andrews v Botany Bay City Council [2007] NSWLEC 716.

2 On 14 April 2004 the respondent, Botany Bay City Council, granted development consent to an application for the demolition of industrial buildings on land now known as Lot 123 in DP 1103399 at Mascot, and for the construction of a seven storey residential building comprising 95 residential units, one commercial/retail space to O’Riordan Street and parking for 192 vehicles in three basement levels.

3 The land encompasses 149 – 161 O’Riordan Street and 192 – 204 Coward Street, Mascot. The land has an area of 4,171.7m2 and comprises nine consolidated allotments.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWLEC 96
Decision Date: 29 February 2008

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, George Andrews appealed against a decision of a Commissioner of the Court modifying a condition of a development consent granted by Botany Bay City Council. The appeal centred on a condition that overhead service cables be placed underground. The court found that the Commissioner had misapplied the Newbury tests and erred in finding that the council's proposed condition 38 did not satisfy the second and third Newbury tests. The court also found that the Commissioner did not give proper, genuine and realistic consideration to the provisions of the Mascot Station Precinct Development Control Plan and substituted his own standard for the C98 standard. The court held that the Commissioner did not take into consideration the standard contained in cl 4.0 of DCP 23. The court allowed the appeal and remitted the matter to a Commissioner for re-determination in accordance with the decision. The applicant was to pay the council's costs of the appeal.

Orders