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Barton v Orange City Council

Barton v Orange City Council

Case [2008] NSWLEC 104 6 March 2008

Development Consent

Invalidity of Development Consent

Overshadowing

Standing

Harm to Property

Natural Justice & Procedural Fairness

Public Interest

Planning & Development Law

Environmental Law

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Land and Environment Court

of New South Wales

CITATION: Barton v Orange City Council [2008] NSWLEC 104

PARTIES:
APPLICANTS:
Gregory John Barton and Amanda Wendy Barton
FIRST RESPONDENT:
Orange City Council
SECOND RESPONDENT:
Kerryn Westgeest

FILE NUMBER(S): 40535 of 2007

CORAM: Biscoe J

KEY ISSUES: Development Consent :- whether invalid - whether declaration of invalidity should be made - whether demolition order should be made - discretionary considerations.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW) ss 79C(1)(a) and (b), 101, 124
Orange Development Control Plan 2004 cll 5.2, 7.4, 7.5, 7.7
Orange Local Environmental Plan 2000 (NSW) cl 41

CASES CITED: ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67
Attorney General v Greenfield (1964) 79 WN (NSW) 241
Cutcliffe v Lithgow City Council (2006) 147 LGERA 330
F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGRA 306
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472
Ireland v Cessnock City Council (1999) 103 LGERA 285
Lord v Hiscock (1980) 47 LGRA 168
Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302
Tynan v Meharg and Newcastle City Council (1998) 101 LGERA 255
Tynan v Meharg and Newcastle City Council (No 2) (1999) 102 LGERA 119
Vaughan v Byron Shire Council (1999) 103 LGERA 321
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672
Woollahra Municipal Council v Alcaine (1986) 59 LGRA 40
Woollahra Municipal Council v Barlow (1988) 66 LGRA 248

DATES OF HEARING: 11-12 December 2007, 31 January 2008, 8, 11 February 2008 written submissions

DATE OF JUDGMENT:
6 March 2008

LEGAL REPRESENTATIVES:
APPLICANTS:
Mr M Wright, barrister
SOLICITORS:
King-Christopher Carpenter
FIRST RESPONDENT:
Submitting appearance
SECOND RESPONDENT:
Mr G Miller QC and Mr T To
SOLICITORS:
Campbell Paton & Taylor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

6 March 2007

40535 of 2007

GREGORY JOHN BARTON & ANOR v ORANGE CITY COUNCIL & ANOR

JUDGMENT

1 HIS HONOUR: The applicants challenge the validity of a development consent granted by Orange City Council on 14 February 2007 for the construction of a second storey addition to the rear of a dwelling house at 315 Lords Place, Orange. The applicants claim a consequential order that the owner, Mrs Kerryn Westgeest, demolish it. The council has filed a submitting appearance save as to costs. Invalidity of the development consent is uncontested. A demolition order is contested by Mrs Westgeest on discretionary grounds.

2 The applicants, Gregory John Barton and Amanda Wendy Barton, are the owners and occupiers of the next door property to the south at 313 Lords Place, Orange where they reside with their young children. The first respondent is the council. The second respondent is Mrs Kerryn Westgeest who made the development application and who resides at No 315 with her husband Mr Dominic Westgeest and their infant child (the birth of their second child is imminent). When they decided 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.

Continue reading Barton v Orange City Council

Details

AGLC: Barton v Orange City Council [2008] NSWLEC 104
Case: [2008] NSWLEC 104
Decision Date: 6 March 2008

CaseChat Overview and Summary

The applicants, Gregory John Barton and Amanda Wendy Barton, challenged the development consent granted by Orange City Council for the construction of a second storey addition to the rear of a dwelling house at 315 Lords Place, Orange. The applicants sought a declaration that the development consent was invalid, a restraint order to prevent further work, and a demolition order for the second storey addition. The council did not contest the invalidity of the development consent but the respondent, Mrs Kerryn Westgeest, opposed a demolition order on discretionary grounds. The key issues were whether the council had failed to take into account mandatory relevant considerations when granting the development consent, and if so, whether the Court should exercise its discretion to order demolition of the addition. The Court found that the council had failed to give proper, genuine or realistic consideration to the matters listed, and that the complaints should be upheld. The Court exercised its discretion to make a demolition order, but granted a stay of six months to give Mrs Westgeest an opportunity to make necessary arrangements. The Court proposed to make final orders including as to costs, on 14 March 2008.

Orders