Ashfield Municipal Council v Armstrong - [2003] NSWCA 353

CITATION: ASHFIELD MUNICIPAL COUNCIL v L. ARMSTRONG [2003] NSWCA 353

HEARING DATE(S): 25/09/2003

JUDGMENT DATE:
5 December 2003

JUDGMENT OF: Santow JA at 1; McColl JA at 2; Foster AJA at 3-17

DECISION: The leave sought be granted, the notice of appeal be filed, and that the appeal be dismissed with costs.

CATCHWORDS: Application for leave and, if granted, appeal against the refusal of a development application.

LEGISLATION CITED: Environmental Planning & Assessment Act 1979
Environmental Planning & Assessment Regulation 2000

CASES CITED: Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
Murphy v Abi-Saab & Ors v (1995) 37 NSWLR 280 at 287
Boles v ESANDA Finance Corporation Limited (1989) 18 NSWLR 666
Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 at 114; 319
Parramatta City Council v Brickworks Limited (1972) 128 CLR 1
Eaton & Sons Pty Limited v Warringah Shire Council (1972) 129 CLR 270
Norman v Gosford Shire Council (1975) 132 CLR 83
Vaughan-Taylor v David Mitchell-Melcann Pty Limited (1991) 25 NSWLR 580 at 589
Lemworth Pty Limited v Liverpool City Council (2001) 53 NSWLR 371
Starray Pty Limited v Sydney City Council (2002) NSWLEC 48
Salvation Army v Newcastle City Council (2000) 107 LGERA 40
North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470

PARTIES :
ASHFIELD MUNICIPAL COUNCIL - Claimant
L. ARMSTRONG - Opponent

FILE NUMBER(S): CA 40100/03

COUNSEL: Mr I. Hemmings - Claimant
Mr A. Galasso - Opponent

SOLICITORS: Pike & Pike - Claimant
Christopher Balomatis - Opponent

LOWER COURTJURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): 10133/01

LOWER COURT
JUDICIAL OFFICER : Cowdroy J

CA 40100/03
LEC 10133/01

SANTOW JA
McCOLL JA
FOSTER AJA
Friday, 5 December, 2003

ASHFIELD MUNICIPAL COUNCIL v ARMSTRONG

Judgment

1 SANTOW JA: I agree with Foster AJA.

2 McCOLL JA: I agree with Foster AJA.

3 FOSTER AJA: This is an application for leave and, if leave be granted, to appeal against a decision given by Cowdroy J on 5 February 2003 in the Land & Environment Court of New South Wales. His Honour had for determination a question of law raised by the present claimant, Ashfield Municipal Council (“the Council”), in Class 1 proceedings brought by the opponent, L. Armstrong (“Mr Armstrong”), being an appeal against the refusal by the claimant of a development application made by him to it for alterations and additions to premises of which he and his wife were proprietors, being Lot 1, DP 908000, 6 Kensington Road, Summer Hill.

4 The question of law posed for his Honour’s determination was:-

“ Whether the existing use of the building on land known as Lot 1 DP 908000, 6 Kensington Road, Summer Hill for the purpose of a residential flat building permits the grant of a development consent to development application 148/00 which proposed basement car parking for nine residents in connection with the proposed conversion/extension of an existing building currently being used as four flats to provide 8 x 1 bedroom flats with…

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: [2003] NSWCA 353
Decision Date: 5 December 2003

CaseChat Overview and Summary

Ashfield Municipal Council sought leave to appeal against a decision of the Land and Environment Court of New South Wales, which had granted a development application that the Council had refused. The primary dispute concerned the interpretation and application of planning controls relevant to the development.

The Court of Appeal was required to determine whether the Land and Environment Court had erred in its interpretation of the Ashfield Local Environmental Plan 1991, specifically concerning the permissibility of the proposed development within the relevant zone, and whether the consent authority had properly considered all relevant matters under the Environmental Planning and Assessment Act 1979.

The Court of Appeal, in its reasoning, found that the Land and Environment Court had correctly interpreted the relevant provisions of the Local Environmental Plan, concluding that the proposed development was permissible. The Court affirmed the principles that consent authorities must consider all relevant matters and that the Land and Environment Court has broad powers to grant development consent where it considers appropriate, even if the local council has refused it.

Leave to appeal was granted, the notice of appeal was filed, and the appeal itself was dismissed, with the appellant, Ashfield Municipal Council, ordered to pay the costs of the respondent.

Orders

Orders of the court

The leave sought be granted, the notice of appeal be filed, and that the appeal be dismissed with costs.

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

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CITATION:	ASHFIELD MUNICIPAL COUNCIL v L. ARMSTRONG [2003] NSWCA 353
HEARING DATE(S):	25/09/2003
JUDGMENT DATE:	5 December 2003
JUDGMENT OF:	Santow JA at 1; McColl JA at 2; Foster AJA at 3-17
DECISION:	The leave sought be granted, the notice of appeal be filed, and that the appeal be dismissed with costs.
CATCHWORDS:	Application for leave and, if granted, appeal against the refusal of a development application.
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 Environmental Planning & Assessment Regulation 2000
CASES CITED:	Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 Murphy v Abi-Saab & Ors v (1995) 37 NSWLR 280 at 287 Boles v ESANDA Finance Corporation Limited (1989) 18 NSWLR 666 Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 at 114; 319 Parramatta City Council v Brickworks Limited (1972) 128 CLR 1 Eaton & Sons Pty Limited v Warringah Shire Council (1972) 129 CLR 270 Norman v Gosford Shire Council (1975) 132 CLR 83 Vaughan-Taylor v David Mitchell-Melcann Pty Limited (1991) 25 NSWLR 580 at 589 Lemworth Pty Limited v Liverpool City Council (2001) 53 NSWLR 371 Starray Pty Limited v Sydney City Council (2002) NSWLEC 48 Salvation Army v Newcastle City Council (2000) 107 LGERA 40 North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470
PARTIES :	ASHFIELD MUNICIPAL COUNCIL - Claimant L. ARMSTRONG - Opponent
FILE NUMBER(S):	CA 40100/03
COUNSEL:	Mr I. Hemmings - Claimant Mr A. Galasso - Opponent
SOLICITORS:	Pike & Pike - Claimant Christopher Balomatis - Opponent

LOWER COURTJURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	10133/01
LOWER COURT JUDICIAL OFFICER :	Cowdroy J