Barton Securities Limited v Warringah Council - [2009] NSWLEC 179

Reported Decision: 170 LGERA 223

Land and Environment Court

of New South Wales

CITATION: Barton Securities Limited v Warringah Council & Others [2009] NSWLEC 179

PARTIES: APPLICANT
Barton Securities Limited
FIRST RESPONDENT
Warringah Council
SECOND RESPONDENT
Colin Robert Haines
THIRD RESPONDENT
The Owners Strata Plan No.13322

FILE NUMBER(S): 41181 of 2008

CORAM: Sheahan J

KEY ISSUES: DEVELOPMENT CONSENT :- challenges on many grounds to the validity of a consent, jurisdictional facts, procedural fairness, owners consent, notification requirements, failure to consider impacts, design verification requirements, whether works are "substantial redevelopment" or "substantial refurbishment"

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Evidence Act 1995
Interpretation Act 1987
Land and Environment Court Act 1979
Strata Schemes Management Act 1996
Environmental Planning and Assessment Regulation 2000
State Environmental Planning Policy 65

CASES CITED: Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources [2008] FCAFC 3; (2008) 158 LGERA 324;
Barrick Australia Ltd v Williams [2009] NSWCA 275
Botany Bay City Council v Remath Investments No.6 Pty Ltd [2000] NSWCA 364; (2000) 111 LGERA 446
Clark and Davis v Wollongong City Council [2008] NSWLEC 110
Corporation of the City of Enfield v Development Assessment Commission & Anor [2000] HCA 5; (2000) 199 CLR 135
Hope v Bathurst City Council (1980) 144 CLR 1
IGS Enterprises Pty Ltd v Hornsby Shire Council [2008] NSWLEC 304; (2008) 164 LGERA 424
Kindimindi Investments Pty Limited v Lane Cove Council [2006] NSWLEC 399; (2006) 143 LGERA 277
King v Woollahra Council [2006] NSWLEC 654
Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207
McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 161 LGERA 170
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Notaras v Waverley Council & Anor [2007] NSWCA 333; (2007) 161 LGERA 230
NRS Group Pty Ltd v Cowra [2008] NSWLEC 156
Parramatta City Council v Hale (1982) 47 LGRA 319
Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 62 FLR 437
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Sisic v Rockdale City Council [2007] NSWLEC 687; (2007) 158 LGERA 170
Tillmanns Butcheries Pty Ltd v AMIEU (1979) 42 FLR 331
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55
Woolworths Ltd v Pallas Newco Pty Ltd & Anor [2004] NSWCA 422; (2004) 61 NSWLR 707

DATES OF HEARING: 16 and 17 June 2009

DATE OF JUDGMENT:
26 October 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr C R Ireland, Barrister
SOLICITORS
Terence W Riley
FIRST RESPONDENT
Mr A Hudson, Solicitor of
Wilshire Webb Staunton Beattie Lawyers
SECOND RESPONDENT
Mr Ian Tremback, Solicitor
THIRD RESPONDENT
Submitting appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

26 October 2009

41181 of 2008 Barton Securities Limited v Warringah Council & Others
JUDGMENT

Introduction

1 His Honour: The applicant company is…

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: [2009] NSWLEC 179
Decision Date: 26 October 2009

CaseChat Overview and Summary

Barton Securities Limited, an applicant, sought to set aside a development consent granted by Warringah Council, the first respondent, to Colin Robert Haines, the second respondent, on 20 August 2008, approving alterations and additions to a home unit next door to the applicant's property at 71 Undercliff Road Harbord/Freshwater. The third respondent, The Owners Strata Plan No.13322, is the proprietor of the lot in question. The applicant argued that the consent was invalid due to several jurisdictional errors, including failure to consider the impact on their property, lack of design verification, and absence of owner's consent. The Council argued that the applicant's claims were merely a challenge on the merits contrary to the established principles for judicial review. The court considered the applicant's challenges under five headings: failure to apply SEPP 65 and Regulation 50(1A), failure to take into account impacts on No.71, denial of procedural fairness, and absence of owner's consent. The court found that the Council had made jurisdictional errors in excluding SEPP 65, failing to consider the impact on No.71, and not providing the applicant with procedural fairness. The court also found that the absence of owner's consent amounted to a jurisdictional error. The court upheld most of the applicant's challenges and stood the matter over to set a date for further hearing of the questions of appropriate relief and costs.

Orders