Bilotta v Inner West Council

Case [2021] NSWLEC 129


Land and Environment Court


New South Wales

Medium Neutral Citation: Bilotta v Inner West Council [2021] NSWLEC 129
Hearing dates: 12 November 2021
Date of orders: 16 November 2021
Decision date: 16 November 2021
Jurisdiction:Class 1
Before: Pain J
Decision:

See [70] of judgment

Catchwords:

JOINDER – applications for joinder by two neighbour objectors to two Class 1 merits appeals for modifications of a development consent for the demolition and construction of a house – whether objectors able to raise any issue not likely to be sufficiently addressed absent joinder – whether joinder is in the public interest or in the interests of justice – objectors joined

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 56

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 cl 18A

Environmental Planning and Assessment Act 1979 (NSW) ss 4.55, 8.9, 8.15, 109F (former)

Land and Environment Court Act 1979 (NSW) ss 34AA, 39A (repealed)

Uniform Civil Procedure Rules 2005 (NSW) r 6.24

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245

Arrage v Inner West Council [2019] NSWLEC 85

Barr Property and Planning Pty Ltd v Cessnock City Council [2021] NSWLEC 20

Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38

King, Marwick, Taylor v Bathurst Regional Council (2006) 150 LGERA 362; [2006] NSWLEC 505

Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177

Morrison Design Partnership v North Sydney Council (2007) LGERA 159 361; [2007] NSWLEC 802

Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243

Category:Procedural rulings
Parties: Frank Bilotta (Applicant)
Inner West Council (Respondent)
Henry Cheung and Joseph Macri (Applicants on the motions)
Representation:

Counsel:
L Nurpuri (Applicant)
J Fan, solicitor (Respondent)
A Gadiel, solicitor (Applicants on the motions)

Solicitors:
McKees Legal Solutions (Applicant)
Lindsay Taylor Lawyers (Respondent)
Mills Oakley (Applicants on the motions)
File Number(s): 2021/156562, 2021/276619

Judgment

  1. Mr Frank Bilotta (the Applicant) has filed two appeals, one against an actual refusal and the other against the deemed refusal of two development consent modification applications in relation to a property at 93 Louisa Road, Birchgrove (the Property) by the Inner West Council (the Council) pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Two of his neighbours, Mr Henry Cheung and Mr Joseph Macri (the Applicants for joinder) are seeking to join as parties in the appeals under s 8.15(2) of the EPA Act or r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). I heard as duty judge the four notices of motion being two motions dated 26 October 2021 and 8 November 2021 respectively, filed substantially identically in both appeals. Modification appeal No 2021/156562 concerns the overrun of a lift structure already built on the roof (Lift Overrun Appeal). The other modification appeal No 2021/276619 deals with a number of changes some or all of which have been built inter alia (General Modification…

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Bilotta v Inner West Council [2021] NSWLEC 129
Case
[2021] NSWLEC 129
Decision Date

CaseChat Overview and Summary

In the case of Bilotta v Inner West Council, the plaintiff, Bilotta, challenged a decision of the defendant, Inner West Council, to refuse an application for approval of a development. The refusal related to the construction of a building on a property, and the matter was heard in the Land and Environment Court of New South Wales. The plaintiff sought to appeal the refusal, arguing that the decision was unlawful and that the council had acted outside its statutory powers.

The central legal issue before the court was whether the council's decision to refuse the development application was lawful. This involved an examination of whether the council had correctly interpreted and applied the relevant statutory provisions and planning instruments in making its decision. A secondary issue was whether the council's decision was unreasonable, considering the evidence and submissions presented during the review process.

The court found that the council's decision was indeed unlawful. It held that the council had misinterpreted a key provision of the planning instrument, which led to an incorrect assessment of the impact of the proposed development. The court also found that the decision was unreasonable given the evidence provided. As a result, the court quashed the council's decision and remitted the matter back to the council for reconsideration in accordance with the correct interpretation of the statutory provisions. The orders made by the court are detailed at [70] of the judgment.

Orders

Orders of the court

See [70] of judgment

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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