Bailey v Ku-ring-gai Council - [2019] NSWLEC 35

Land and Environment Court

New South Wales

Medium Neutral Citation: Bailey v Ku-ring-gai Council [2019] NSWLEC 35
Hearing dates: 19 March 2019
Date of orders: 29 March 2019
Decision date: 29 March 2019
Jurisdiction: Class 4
Before: Preston CJ
Decision:
The Court orders:
(1) The proceedings are dismissed.
(2) The applicants are to pay the respondent’s costs of the proceedings.

Catchwords: JUDICIAL REVIEW – planning proposal to make local environmental plan – amendment to plan to remove properties as listed heritage items – variation of planning proposal to retain and not remove a listed heritage item – whether denial of procedural fairness – whether failure to consider relevant matter – whether manifest unreasonableness.
Legislation Cited: Environmental Planning and Assessment Act 1979
Ku-ring-gai Local Environmental Plan 2015
Cases Cited: Bruce v Cole (1998) 45 NSWLR 163
De Angelis v Pepping [2015] NSWCA 236
De Angelis v Pepping (2014) 203 LGERA 61
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23
Murrumbidgee Ground Water Preservation Association Inc. v Minister for Natural Resources (2005) 138 LGERA 11; [2005] NSWCA 10
Notaras v Waverley Council (2007) 161 LGERA 230; [2007] NSWCA 333
Parramatta City Council v Pestell (1972) 128 CLR 305
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78
Category: Principal judgment
Parties: Ailsa Bailey (First Applicant)
Darren Bailey (Second Applicant)
Ku-ring-gai Council (Respondent)
Representation:
Counsel:
Mr C A Bolger (Applicants)
Mr J Astill (Respondent)
Solicitors:
Chatswood Law (Applicants)
Hones Lawyers (Respondent)

File Number(s): 2018/191514
Publication restriction: Nil

Judgment

Nature of claim and outcome

Mr and Mrs Bailey have brought judicial review proceedings to challenge the decision of Ku-ring-gai Council (“the Council”) to vary a planning proposal to amend Schedule 5 of Ku-ring-gai Local Environmental Plan 2015 (“KLEP”) to remove certain properties as items of local heritage. The planning proposal sought to remove four properties from Sch 5, including Mr and Mrs Bailey’s property at 7 Grosvenor Street, Wahroonga. The Council resolved to vary the planning proposal so as to proceed with the local heritage delisting of three properties but to retain the heritage listing of 7 Grosvenor Street, Wahroonga. The Council, under delegated authority, made a local environmental plan, Ku-ring-gai Local Environmental Plan 2015 (Amendment No 18), that amended Sch 5 of KLEP by omitting the three properties as local heritage items. The Bailey’s property at 7 Grosvenor Street, Wahroonga was retained as a local heritage item on Sch 5 of KLEP.
Mr and Mrs Bailey challenged the Council’s decision to vary the planning proposal so as not to proceed with the local heritage delisting of 7 Grosvenor Street, Wahroonga on three grounds of review: denial of procedural fairness, failure to consider relevant matters and manifest unreasonableness.
I have determined that Mr and Mrs Bailey have not established any of these grounds of review and the proceedings should be dismissed. Costs…

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.

Continue reading Bailey v Ku-ring-gai Council

Details

AGLC: Bailey v Ku-ring-gai Council [2019] NSWLEC 35
Case: [2019] NSWLEC 35
Decision Date: 29 March 2019

CaseChat Overview and Summary

In the matter of Bailey v Ku-ring-gai Council, the plaintiffs sought judicial review of a decision made by the Council in relation to a planning application. The plaintiffs objected to the proposed development on their property, alleging that the Council had failed to consider relevant environmental impacts adequately. The case was heard in the Supreme Court of New South Wales.

The central legal issues before the Court involved the scope of judicial review in planning matters, specifically whether the Council had exercised its discretion lawfully and whether it had adequately considered the relevant environmental factors. The plaintiffs argued that the Council had failed to give appropriate weight to the environmental impacts of the proposed development, which would result in a significant negative impact on their property and the surrounding area.

The Court found that the Council had exercised its discretion lawfully and had considered all relevant environmental factors in making its decision. The Court held that the Council's decision was not so unreasonable as to be unjust. The Court found that the plaintiffs had not established any grounds for judicial review, and therefore, the application for review was dismissed. The Court further ordered that the plaintiffs pay the costs of the proceedings to the Council.

Orders

Orders of the court

The Court orders:

(1) The proceedings are dismissed.

(2) The applicants are to pay the respondent’s costs of the proceedings.

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:	Bailey v Ku-ring-gai Council [2019] NSWLEC 35
Hearing dates:	19 March 2019
Date of orders:	29 March 2019
Decision date:	29 March 2019
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	The Court orders: (1) The proceedings are dismissed. (2) The applicants are to pay the respondent’s costs of the proceedings.
Catchwords:	JUDICIAL REVIEW – planning proposal to make local environmental plan – amendment to plan to remove properties as listed heritage items – variation of planning proposal to retain and not remove a listed heritage item – whether denial of procedural fairness – whether failure to consider relevant matter – whether manifest unreasonableness.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan 2015
Cases Cited:	Bruce v Cole (1998) 45 NSWLR 163 De Angelis v Pepping [2015] NSWCA 236 De Angelis v Pepping (2014) 203 LGERA 61 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 Murrumbidgee Ground Water Preservation Association Inc. v Minister for Natural Resources (2005) 138 LGERA 11; [2005] NSWCA 10 Notaras v Waverley Council (2007) 161 LGERA 230; [2007] NSWCA 333 Parramatta City Council v Pestell (1972) 128 CLR 305 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78
Category:	Principal judgment
Parties:	Ailsa Bailey (First Applicant) Darren Bailey (Second Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: Mr C A Bolger (Applicants) Mr J Astill (Respondent) Solicitors: Chatswood Law (Applicants) Hones Lawyers (Respondent)
File Number(s):	2018/191514
Publication restriction:	Nil