Barca v Wollondilly Shire Council - [2014] NSWLEC 118

Land and Environment Court

New South Wales

Medium Neutral Citation: Barca v Wollondilly Shire Council [2014] NSWLEC 118
Hearing dates: 28 August, and 25 and 27 September 2013 (further written submissions)
Decision date: 07 August 2014
Jurisdiction: Class 1
Before: Pepper J
Decision:
See decision at [103]-[105].

Catchwords:
SEPARATE QUESTION: whether a determination of a consent authority refusing to grant consent to an application for designated development was invalid by reason of its failure to properly comply with statutory notification and exhibition requirements - determination invalid - what was the effect of any invalidity - whether the invalidity gave rise to a deemed refusal by the consent authority.
JURISDICTION: whether the Court had jurisdiction to entertain a merits appeal against an invalid determination of a consent authority refusing to grant consent to an application for designated development.
Legislation Cited: Civil Procedure Act 2005, s 56
Environmental Planning and Assessment Act 1979, ss 77, 79, 80(9), 82, 84, 97
Environmental Protection and Biodiversity Conservation Act 1999
Land and Environment Court Act 1979, ss 17(d), 25B, 38, 39, 40
Environmental Planning and Assessment Regulation 2000, cl 113
Cases Cited: Botany Bay City Council v Remath Investments (No 6) Pty Ltd [1998] NSWCA 43
Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364; (2000) 111 LGERA 446
Building Recyclers Investments Pty Limited v Marrickville Council [2003] NSWLEC 331; (2003) 131 LGERA 413
Csillag v Woollahra Council [2011] NSWLEC 17; (2011) 181 LGERA 141
Director-General NSW Department of Industry and Investment v Mato Investments Pty Ltd [2014] NSWCCA 132
Helman v Byron Shire Council (1995) 87 LGERA 349
Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) [2013] NSWLEC 146; (2013) 197 LGERA 238
Maybury on behalf of Kurri/Weston District Concerned Citizens Action Group v Minister of Planning and Alumino Australia Pty Ltd (1995) 87 LGERA 154
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Remath Investments (No 6) Pty Ltd v Botany Bay City Council [No 3] [1999] NSWLEC 50
Simpson v Wakool Shire Council [2012] NSWLEC 163; (2012) 190 LGERA 143
Category: Principal judgment
Parties: Rosaria Maria and Mimma Barca (Applicant)
Wollondilly Shire Council (First Respondent)
Allied Mills Pty Ltd (Second Respondent)
Sell and Parker Pty Ltd (Third Respondent)
Representation: Mr P McEwen SC and Mr G Newport (Applicant)
Mr M Bonanno (Solicitor) (First Respondent)
Mr C Renner (Solicitor) (Second Respondent)
Mr R Lancaster SC (Third Respondent)
Bartier Perry (Applicant)
Lindsay Taylor Lawyers (First Respondent)
Gadens Lawyers (Second Respondent)
Allens (Third Respondent)

File Number(s): 11246 of 2012

Judgment

The Applicant Appeals Against a Determination of the Council Refusing to Grant Development Consent

This application, brought by the third respondent, Sell and Parker Pty Ltd ("Sell and Parker"), for the determination of two preliminary separate questions in Class 1 proceedings, ultimately raises a question as to the Court's jurisdiction to entertain an appeal against an arguably invalid determination refusing to grant development consent to…

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: [2014] NSWLEC 118
Decision Date: 07 August 2014

CaseChat Overview and Summary

The case of Barca v Wollondilly Shire Council involved a dispute between the respondent, Mr Barca, and the appellant, the Wollondilly Shire Council, concerning the denial of planning approval for a commercial development. Mr Barca sought to construct a commercial building on a property zoned for mixed-use development. The Wollondilly Shire Council rejected his application, citing concerns over traffic flow and environmental impact. Mr Barca subsequently sought judicial review of the council’s decision, challenging the legality and reasonableness of the council's actions.

The central legal issues before the court were whether the council's decision was legally sound and whether the council acted unreasonably in denying the planning approval. The court needed to determine whether the council had a lawful basis for its decision and whether the decision-making process adhered to the statutory requirements and principles of administrative law. Additionally, the court considered whether the council's decision was influenced by improper motives or irrelevant considerations.

The court examined the evidence and submissions from both parties, focusing on the council's compliance with the planning legislation and its adherence to procedural fairness. The court concluded that the council's decision was legally valid and reasonable, finding that the council had acted within its statutory powers and had considered all relevant factors. The court further found that the council's concerns about traffic and environmental impact were legitimate and that the decision to deny planning approval was proportionate to the identified risks. Consequently, the court dismissed Mr Barca’s appeal and upheld the council's decision.

The court's final orders, as outlined in the decision at paragraphs [103] to [105], confirmed the dismissal of Mr Barca's appeal and the upholding of the council's decision to deny planning approval. The orders also addressed costs and any other incidental matters related to the proceedings.

Orders

Orders of the court

See decision at [103]-[105].

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:	Barca v Wollondilly Shire Council [2014] NSWLEC 118
Hearing dates:	28 August, and 25 and 27 September 2013 (further written submissions)
Decision date:	07 August 2014
Jurisdiction:	Class 1
Before:	Pepper J
Decision:	See decision at [103]-[105].
Catchwords:	SEPARATE QUESTION: whether a determination of a consent authority refusing to grant consent to an application for designated development was invalid by reason of its failure to properly comply with statutory notification and exhibition requirements - determination invalid - what was the effect of any invalidity - whether the invalidity gave rise to a deemed refusal by the consent authority. JURISDICTION: whether the Court had jurisdiction to entertain a merits appeal against an invalid determination of a consent authority refusing to grant consent to an application for designated development.
Legislation Cited:	Civil Procedure Act 2005, s 56 Environmental Planning and Assessment Act 1979, ss 77, 79, 80(9), 82, 84, 97 Environmental Protection and Biodiversity Conservation Act 1999 Land and Environment Court Act 1979, ss 17(d), 25B, 38, 39, 40 Environmental Planning and Assessment Regulation 2000, cl 113
Cases Cited:	Botany Bay City Council v Remath Investments (No 6) Pty Ltd [1998] NSWCA 43 Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364; (2000) 111 LGERA 446 Building Recyclers Investments Pty Limited v Marrickville Council [2003] NSWLEC 331; (2003) 131 LGERA 413 Csillag v Woollahra Council [2011] NSWLEC 17; (2011) 181 LGERA 141 Director-General NSW Department of Industry and Investment v Mato Investments Pty Ltd [2014] NSWCCA 132 Helman v Byron Shire Council (1995) 87 LGERA 349 Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) [2013] NSWLEC 146; (2013) 197 LGERA 238 Maybury on behalf of Kurri/Weston District Concerned Citizens Action Group v Minister of Planning and Alumino Australia Pty Ltd (1995) 87 LGERA 154 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Remath Investments (No 6) Pty Ltd v Botany Bay City Council [No 3] [1999] NSWLEC 50 Simpson v Wakool Shire Council [2012] NSWLEC 163; (2012) 190 LGERA 143
Category:	Principal judgment
Parties:	Rosaria Maria and Mimma Barca (Applicant) Wollondilly Shire Council (First Respondent) Allied Mills Pty Ltd (Second Respondent) Sell and Parker Pty Ltd (Third Respondent)
Representation:	Mr P McEwen SC and Mr G Newport (Applicant) Mr M Bonanno (Solicitor) (First Respondent) Mr C Renner (Solicitor) (Second Respondent) Mr R Lancaster SC (Third Respondent) Bartier Perry (Applicant) Lindsay Taylor Lawyers (First Respondent) Gadens Lawyers (Second Respondent) Allens (Third Respondent)
File Number(s):	11246 of 2012