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Bechara v Plan Urban Services Pty Ltd

Bechara v Plan Urban Services Pty Ltd

Case [2006] NSWLEC 594 18 September 2006

Judicial Review

Natural Justice & Procedural Fairness

Statutory Interpretation

Legitimate Expectation

Proportionality

Administrative Law

Environmental Law

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Reported Decision: (2006) 149 LGERA 41

Land and Environment Court

of New South Wales

CITATION: Bechara v Plan Urban Services Pty Ltd & Ors [2006] NSWLEC 594

PARTIES:
APPLICANT
Georgette Bechara
FIRST RESPONDENT
Plan Urban Services Pty Ltd
SECOND RESPONDENT
John Boulas
THIRD RESPONDENT
Australian Advanced Building Pty Ltd
FOURTH RESPONDENT
City of Canada Bay Council

FILE NUMBER(S): 40787 of 2006

CORAM: Jagot J

KEY ISSUES: Judicial Review :- s 96(1A) modification application - alleged misdirection - whether status of satisfaction formed by consent authority reasonably open - substantially the same and minimal environmental impact

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C, s 96
Roads Act 1993 s 138
Environmental Planning and Assessment Regulation 2000 cl 119(2)

CASES CITED: ASIC v Rich [2005] NSWSC 149;
Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223;
Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1;
Austcorp No 459 Pty Limited v Baulkham Hills Shire Council (2002) 122 LGERA 205;
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139;
King, Markwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505;
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259;
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611;
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298;
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468;
Save our Street Incorporated v Settree (2006) NSWLEC 570;
Telstra Corporation Ltd and Another v Hurstville City Council and Others (2002) 118 FCR 198;
The Council of the City of Parramatta v Pestell (1972) 128 CLR 305;
Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296

DATES OF HEARING: 15/09/2006

DATE OF JUDGMENT:
09/18/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Sahade
SOLICITORS
Phillips Fox
FIRST RESPONDENT
Mr J A Ayling SC
SOLICITORS
Abbott Tout
SECOND RESPONDENT
Mr J A Ayling SC
SOLICITORS
Abbott Tout
THIRD RESPONDENT
Mr J A Ayling SC
SOLICITORS
Abbott Tout
FOURTH RESPONDENT
Mr P Jackson (solicitor)
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

18 September 2006

40787 of 2006

GEORGETTE BECHARA
Applicant

PLAN URBAN SERVICES PTY LTD
First Respondent

JOHN BOULAS
Second Respondent

AUSTRALIAN ADVANCED BUILDING PTY LTD
Third Respondent

CITY OF CANADA BAY COUNCIL
Fourth Respondent
JUDGMENT

Jagot J:
Introduction

1 The applicant seeks a declaration that the modification of development consent 220/2004 approved by the City of Canada Bay Council (“the Council”) by notice dated 24 August 2006 is invalid and of no effect, and orders consequential upon that declaration.

2 The declaration is claimed on four grounds, none of which were clearly disclosed in the applicant’s points of claim. That fact caused the first, second and third respondents to object to the applicant relying on these claims, albeit without any suggestion that those respondents…

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 Bechara v Plan Urban Services Pty Ltd

Details

AGLC: Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594
Case: [2006] NSWLEC 594
Decision Date: 18/09/2006

CaseChat Overview and Summary

The applicant, Georgette Bechara, sought a declaration that the modification of development consent approved by the City of Canada Bay Council was invalid and of no effect. She raised four claims, none of which were clearly disclosed in her points of claim. The applicant argued that the Council misdirected itself in law with respect to s 96(1A)(b) of the Environmental Planning and Assessment Act 1979, and that it was not reasonably open to the Council to be satisfied that the development to which the consent as modified related would be substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified. The applicant also claimed that it was not reasonably open to the Council to be satisfied that the proposed modification was of minimal environmental impact as required by s 96(1A)(a) of the EPA Act, and that the grant of the modification approval was in breach of s 96(1A)(c) of the EPA Act. The court held that the applicant had not discharged its onus to establish that Mr Robinson's state of satisfaction under s 96(1A)(b) and s 96(1A)(a) was not reasonably open. The court also held that the applicant had not established any breach of s 96(1A)(c) of the EPA Act. The applicant's grounds of challenge to the modification approval of 24 August 2006 were not upheld, and the class four application was dismissed. The applicant was ordered to pay the respondents' costs of the proceedings as agreed or as assessed.

Orders