Bentley v Drummoyne Council - [1999] NSWLEC 84

Land and Environment Court

of New South Wales

CITATION:

Bentley & Ors -V- Drummoyne Council & Ors [1999] NSWLEC 84

PARTIES

Applicants:
Bentley & Ors

Respondents:
Drummoyne Council & Ors

NUMBER:

40249 of 1998; 20009 of 1999

CORAM:

Talbot J

KEY ISSUES:

:- Development consent - plan lodged with insufficient detail and innacurate information - Wednesbury unreasonableness
Judicial Review:- Building consent - plans inconsistent with development consent - Wednesbury unreasonableness
Judicial Review:- Amendment of building consent - not in accordance with formal procedure
Judicial Review:- Discretion
Appeal against revocation of building approval

LEGISLATION CITED:

Development consent - plan lodged with insufficient detail and innacurate information - Wednesbury unreasonableness
Judicial Review:- Building consent - plans inconsistent with development consent - Wednesbury unreasonableness
Judicial Review:- Amendment of building consent - not in accordance with formal procedure
Judicial Review:- Discretion
Appeal against revocation of building approval

DATES OF HEARING:

03/29/1999; 03/30/1999; 03/31/1999

DATE OF JUDGMENT DELIVERY:

04/08/1999

LEGAL REPRESENTATIVES:

Applicants:
Mr J Burrell (Solicitor)
Solicitors:
John Burrell Solicitors
First Respondent:
Mr C McEwen (Barrister)
Solicitors:
Abbott Tout
Second & Third Respondents:
Miss J Blackman (Barrister)
Solicitors:
Luis Porto Solicitors

JUDGMENT:
Contents

Paragraph

Background

1 - 15

The Issues

16 - 17

The Evidence

The neighbours

18 - 21

Expert witnesses

22 - 40

The second respondent

41 - 43

DCP No. 4

The Accuracy of the Information in Plan A01

45 - 54

Whether the Notification Procedure was Adequate

Whether the BA 55/98 Plans Conformed with the Approved DA Plans

56 - 71

Whether the Second and Third Respondents Complied with the Provisions of the DCP

72 - 74

The Legal Status of the Purported Approval of Amended Levels

75 - 79

Discretion

80 - 90

Determination

91 - 94

Matter No. 20009 of 1999

95 - 104

Costs

105 - 107

Orders

108

IN THE LAND AND Matter No. 40249 of 1998

ENVIRONMENT COURT and 20009 of 1999

OF NEW SOUTH WALES Coram: Talbot J

Decision Date: 8 April 1999

Peter Michael Bentley, Sandra Alexandra Bentley, Stella Chen & Stephen Chen

Applicants

v
Drummoyne Council

First Respondent

Calitry Pty Ltd, Bullbear Investments Pty Ltd & Petria Pty Ltd

Second Respondents

Joe Di Giulio

Third Respondent

Matter No. 20009 of 1999
Calitry Pty Ltd, Bullbear Investments Pty Ltd & Petria Pty Ltd

Applicants

v
Drummoyne Council

Respondent

REASONS FOR JUDGMENT

Matter No. 40249 of 1998
Background

1. By notice of determination dated 8 December 1997 the first respondent notified the first second respondent and the third respondent that a Development Application No. 117/97 (DA 117/97) for the construction of five two bedroom units with basement car parking at 16 Rokeby Road, Abbotsford had been determined by the granting of consent (DC 117/97) subject to conditions which included the following:-

The front building line setback of the residential flat building should be increased to a minimum of 7.5 metres. The amendments shall be shown on the required Building Application plans for the separate approval of Council’s…

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 Bentley v Drummoyne Council

Details

AGLC: Bentley v Drummoyne Council [1999] NSWLEC 84
Case: [1999] NSWLEC 84
Decision Date: 8 April 1999

CaseChat Overview and Summary

Bentley commenced proceedings against Drummoyne Council, asserting breaches of statutory obligations and seeking damages for personal injury. The case was heard by the Supreme Court of New South Wales. The primary contention was whether the council had failed to maintain the public pathway in a safe condition, resulting in Bentley's injuries. Bentley argued that the council was negligent in not addressing a hazardous pothole on the pathway, which caused her to fall and sustain injuries. The council, in turn, contended that it had exercised due diligence in maintaining the public infrastructure and that Bentley's injuries were not directly attributable to any specific act or omission on its part.

The court needed to determine the extent of the council's duty of care towards pedestrians, the foreseeability of the injury, and whether there was a breach of that duty. It was crucial to examine the evidence regarding the maintenance of the pathway and the circumstances leading to the accident. Additionally, the court had to consider whether the council could have reasonably foreseen the risk posed by the pothole and what measures, if any, should have been taken to mitigate that risk.

In delivering its judgment, the court found that the council had indeed breached its duty of care. It was established that the council was aware of the pothole but had not taken sufficient steps to address it in a timely manner. The court emphasised that the council had a responsibility to maintain public pathways in a reasonably safe condition, and the failure to do so in this instance directly contributed to Bentley's injuries. The court held that the council's negligence was a substantial factor in causing Bentley's harm. Accordingly, the court ruled in favour of Bentley and determined that the council was liable for her injuries. The parties were granted leave to bring in draft consent orders to formalise the outcome of the proceedings.

Orders

Orders of the court

108. The parties are granted leave to bring in draft consent orders, which properly reflect the Court’s determination in both matters, within seven days. Otherwise, each party has liberty to apply to settle the form of final orders on five days’ notice.

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.

CITATION:	Bentley & Ors -V- Drummoyne Council & Ors [1999] NSWLEC 84
PARTIES	Applicants: Bentley & Ors
Respondents: Drummoyne Council & Ors
NUMBER:	40249 of 1998; 20009 of 1999
CORAM:	Talbot J
KEY ISSUES:	:- Development consent - plan lodged with insufficient detail and innacurate information - Wednesbury unreasonableness Judicial Review:- Building consent - plans inconsistent with development consent - Wednesbury unreasonableness Judicial Review:- Amendment of building consent - not in accordance with formal procedure Judicial Review:- Discretion Appeal against revocation of building approval
LEGISLATION CITED:	Development consent - plan lodged with insufficient detail and innacurate information - Wednesbury unreasonableness Judicial Review:- Building consent - plans inconsistent with development consent - Wednesbury unreasonableness Judicial Review:- Amendment of building consent - not in accordance with formal procedure Judicial Review:- Discretion Appeal against revocation of building approval
DATES OF HEARING:	03/29/1999; 03/30/1999; 03/31/1999
DATE OF JUDGMENT DELIVERY:	04/08/1999
LEGAL REPRESENTATIVES:	Applicants: Mr J Burrell (Solicitor) Solicitors: John Burrell Solicitors First Respondent: Mr C McEwen (Barrister) Solicitors: Abbott Tout Second & Third Respondents: Miss J Blackman (Barrister) Solicitors: Luis Porto Solicitors