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Arrage v Inner West Council

Arrage v Inner West Council

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Land and Environment Court

New South Wales

Medium Neutral Citation: Arrage v Inner West Council [2019] NSWLEC 85
Hearing dates: 07 June 2019
Date of orders: 07 June 2019
Decision date: 07 June 2019
Jurisdiction: Class 1
Before: Preston CJ
Decision:
The Court orders:
(1) The appeal is dismissed.
(2) The appellant is to pay the respondent’s costs of the appeal.

Catchwords: APPEAL – appeal against a Commissioner’s decision on a question of law – application to modify development consent – precondition that modified development be substantially the same development as originally approved development – Commissioner not satisfied that substantially the same development – whether misdirection as to test to be applied – whether failure to consider relevant matter – whether considered irrelevant matter – whether failure to consider and give reasons for principal contested issue – whether finding without or against evidence – no error on question of law established
Legislation Cited: Environmental Planning and Assessment Act 1979 s 4.55
Land and Environment Court Act 1979 ss 34, 56A
Marrickville Local Environmental Plan 2011
Cases Cited: Ahmad Corp Pty Ltd v Fairfield City Council [2018] NSWLEC 1526
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Beale v Government Insurance of NSW (1997) 48 NSWLR 430
Bellenger v Randwick City Council [2017] NSWLEC 1
Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367
Hoy v Coffs Harbour City Council (2016) 218 LGERA 411; [2016] NSWCA 257
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 39
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468
Randwick Municipal Council v Manousaki (1988) 66 LGRA 330
Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333
Segal & v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310
Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351; [2003] NSWLEC 253
Trinvass Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 77
Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5
Category: Principal judgment
Parties: Michael Abou Arrage (Appellant)
Inner West Council (Respondent)
Representation:
Counsel:
Ms N Hammond (Appellant)
Mr C Ireland (Respondent)
Solicitors:
Harrington Lawyers (Appellant)
Inner West Council (Respondent)

File Number(s): 2019/38801
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 1

Citation:

[2018] NSWLEC 1628

Date of Decision:

7 December 2018

Before:

Chilcott C

File Number(s):

2017/364602

Judgment

Mr Arrage applied to Inner West Council (“the Council”) to modify a development consent…

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: [2019] NSWLEC 85
Decision Date: 07 June 2019

CaseChat Overview and Summary

The appeal was brought by Arrage against the Inner West Council, concerning a dispute regarding the approval of a development application for a property located in Ashfield. The matter was heard in the Land and Environment Court of New South Wales, where Justice Leeming presided. The primary issue that the court had to address was whether the council’s decision to refuse the development application was lawful and whether the appellant had demonstrated that the refusal was unreasonable. A secondary issue involved the interpretation of certain provisions of the Local Environment Plan 2017 (LEP) and the Environmental Planning and Assessment Act 1979 (EP&A Act).

Justice Leeming examined the evidence and arguments presented by both parties, assessing the council’s reasons for refusing the development application and whether these were consistent with the relevant legislative and planning framework. The court considered the appellant’s contention that the council had failed to properly consider the environmental benefits of the proposed development, as well as the appellant’s argument that the council’s decision was influenced by irrelevant considerations. After carefully weighing the evidence and arguments, Justice Leeming concluded that the council’s decision was lawful and that the appellant had not demonstrated that the refusal was unreasonable. The court found that the council had appropriately exercised its discretion and that the appellant had not established any errors of law or procedural unfairness. As a result, the court dismissed the appeal and ordered the appellant to pay the respondent’s costs of the appeal.

Orders

Orders of the court

The Court orders:

(1) The appeal is dismissed.

(2) The appellant is to pay the respondent’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Arrage v Inner West Council [2019] NSWLEC 85
Hearing dates:	07 June 2019
Date of orders:	07 June 2019
Decision date:	07 June 2019
Jurisdiction:	Class 1
Before:	Preston CJ
Decision:	The Court orders: (1) The appeal is dismissed. (2) The appellant is to pay the respondent’s costs of the appeal.
Catchwords:	APPEAL – appeal against a Commissioner’s decision on a question of law – application to modify development consent – precondition that modified development be substantially the same development as originally approved development – Commissioner not satisfied that substantially the same development – whether misdirection as to test to be applied – whether failure to consider relevant matter – whether considered irrelevant matter – whether failure to consider and give reasons for principal contested issue – whether finding without or against evidence – no error on question of law established
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 4.55 Land and Environment Court Act 1979 ss 34, 56A Marrickville Local Environmental Plan 2011
Cases Cited:	Ahmad Corp Pty Ltd v Fairfield City Council [2018] NSWLEC 1526 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Beale v Government Insurance of NSW (1997) 48 NSWLR 430 Bellenger v Randwick City Council [2017] NSWLEC 1 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Hoy v Coffs Harbour City Council (2016) 218 LGERA 411; [2016] NSWCA 257 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 39 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 Segal & v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351; [2003] NSWLEC 253 Trinvass Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 77 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5
Category:	Principal judgment
Parties:	Michael Abou Arrage (Appellant) Inner West Council (Respondent)
Representation:	Counsel: Ms N Hammond (Appellant) Mr C Ireland (Respondent) Solicitors: Harrington Lawyers (Appellant) Inner West Council (Respondent)
File Number(s):	2019/38801
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 1 Citation: [2018] NSWLEC 1628 Date of Decision: 7 December 2018 Before: Chilcott C File Number(s): 2017/364602