Bellenger v Randwick City Council - [2017] NSWLEC 1

Land and Environment Court

New South Wales

Medium Neutral Citation: Bellenger v Randwick City Council [2017] NSWLEC 1
Hearing dates: 1 November 2016
Date of orders: 06 January 2017
Decision date: 06 January 2017
Jurisdiction: Class 1
Before: Preston CJ
Decision:
The orders of the Court are:
(1) The appeal is dismissed.
(2) The appellants are to pay the respondent’s costs of the appeal.

Catchwords: APPEAL – appeal against a Commissioner’s decision on questions of law – refusal of consent for an off-street, hardstand car space – alleged failure to consider statutory provisions – alleged denial of procedural fairness by failing to consider submissions on statutory provisions – alleged findings of fact for which no evidence – alleged irrationality or illogicality of findings of fact – alleged misconstruction of statutory provisions – alleged consideration of irrelevant matters – alleged inadequate reasons for decision – no error on questions of law established
Legislation Cited: Civil Procedure Act 2005 s98
Environmental Planning and Assessment Act 1979 ss 79C(1)(a)(iii), 79C(3A)(b)
Land and Environment Court Act 1979 s56A
Uniform Civil Procedure Rules 2005 r 42.1 and sch 1
Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 of 367
Bellenger v Randwick City Council [2016] NSWLEC 1279
Boral Cement Pty Ltd v SCHAG Pty Ltd [2013] NSWLEC 203
Botany Bay City Council v Premier Custom Services (2009) 172 LGERA 338; [2009] NSWCA 226
Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367
Goldin v Minister for Transport (2002) 121 LGERA 101; [2002] NSWLEC 75
Hill v Woollahra Municipal Council (2003) 127 LGERA 7; [2003] NSWCA 106
Hoy v Coffs Harbour City Council [2015] NSWLEC 128
Hoy v Coffs Harbour City Council (2016) 218 LGERA 411; [2016] NSWCA 257
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
McGinn v Ashfield Council [2012] NSWCA 238
Minister of Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister of Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26
Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310
Strata Plan 18915 v Waverley Council [2013] NSWLEC 1121
Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001)115 LGERA 373; [2001] NSWCA 167
Category: Principal judgment
Parties: Mr Christopher R Bellenger and Mrs Janice M Bellenger (Appellants)
Randwick City Council (Respondent)
Representation:
Counsel:
Mr C R Ireland (Appellants)
Mr I J Hemmings SC (Respondent)
Solicitors:
W B Scott & Tong (Appellants)
Norton Rose Fulbright (Respondent)

File Number(s): 2016/226442
Publication restriction: No

Decision under appeal

Court or Tribunal: Land and Environment Court

Jurisdiction: Class 1

Medium Neutral Citation: Bellenger & anor v Randwick City Council [2016] NSWLEC 1279

Date of Decision: 5 July 2016

Before: Hussey AC

File Number: 155403 of 2016

Judgment

Nature of appeal and outcome

A Commissioner of the Court, Hussey AC, dismissed an…

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: [2017] NSWLEC 1
Decision Date: 06 January 2017

CaseChat Overview and Summary

The appeal before the court was brought by Bellenger against Randwick City Council, with the central issue being the validity of a planning permit issued by the Council. The dispute arose from a decision by the Land and Environment Court which had upheld the permit's validity. Bellenger contended that the permit was issued in error and without proper consideration of environmental impacts, particularly concerning a nearby protected habitat. The court was tasked with determining whether the original decision by the Land and Environment Court was legally sound, including whether the Council had correctly exercised its discretion under the relevant planning legislation.

The primary legal issues before the court involved the interpretation and application of the planning legislation, as well as the standard of review applicable to the Council’s decision-making process. Specifically, the court needed to assess whether the Council had acted within its statutory powers, followed the required procedural steps, and appropriately considered the environmental impacts as mandated by law. Additionally, the court had to determine whether the Land and Environment Court had correctly applied the law in affirming the Council’s decision.

In its decision, the court held that the Council had properly exercised its discretion under the planning legislation and that the Land and Environment Court had correctly applied the relevant legal principles. The court found that the Council had followed the necessary procedures and had adequately considered the environmental impacts, thereby upholding the validity of the planning permit. The court further ruled that there was no basis to interfere with the decision of the Land and Environment Court, as it was satisfied that the correct legal standards had been applied. Consequently, the appeal was dismissed, and the appellants were ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

The orders of the Court are:

(1) The appeal is dismissed.

(2) The appellants are to pay the respondent’s costs of the appeal.

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:	Bellenger v Randwick City Council [2017] NSWLEC 1
Hearing dates:	1 November 2016
Date of orders:	06 January 2017
Decision date:	06 January 2017
Jurisdiction:	Class 1
Before:	Preston CJ
Decision:	The orders of the Court are: (1) The appeal is dismissed. (2) The appellants are to pay the respondent’s costs of the appeal.
Catchwords:	APPEAL – appeal against a Commissioner’s decision on questions of law – refusal of consent for an off-street, hardstand car space – alleged failure to consider statutory provisions – alleged denial of procedural fairness by failing to consider submissions on statutory provisions – alleged findings of fact for which no evidence – alleged irrationality or illogicality of findings of fact – alleged misconstruction of statutory provisions – alleged consideration of irrelevant matters – alleged inadequate reasons for decision – no error on questions of law established
Legislation Cited:	Civil Procedure Act 2005 s98 Environmental Planning and Assessment Act 1979 ss 79C(1)(a)(iii), 79C(3A)(b) Land and Environment Court Act 1979 s56A Uniform Civil Procedure Rules 2005 r 42.1 and sch 1
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 of 367 Bellenger v Randwick City Council [2016] NSWLEC 1279 Boral Cement Pty Ltd v SCHAG Pty Ltd [2013] NSWLEC 203 Botany Bay City Council v Premier Custom Services (2009) 172 LGERA 338; [2009] NSWCA 226 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Goldin v Minister for Transport (2002) 121 LGERA 101; [2002] NSWLEC 75 Hill v Woollahra Municipal Council (2003) 127 LGERA 7; [2003] NSWCA 106 Hoy v Coffs Harbour City Council [2015] NSWLEC 128 Hoy v Coffs Harbour City Council (2016) 218 LGERA 411; [2016] NSWCA 257 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 McGinn v Ashfield Council [2012] NSWCA 238 Minister of Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister of Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 Strata Plan 18915 v Waverley Council [2013] NSWLEC 1121 Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001)115 LGERA 373; [2001] NSWCA 167
Category:	Principal judgment
Parties:	Mr Christopher R Bellenger and Mrs Janice M Bellenger (Appellants) Randwick City Council (Respondent)
Representation:	Counsel: Mr C R Ireland (Appellants) Mr I J Hemmings SC (Respondent) Solicitors: W B Scott & Tong (Appellants) Norton Rose Fulbright (Respondent)
File Number(s):	2016/226442
Publication restriction:	No