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Bilotta v Inner West Council

Bilotta v Inner West Council

Case [2021] NSWLEC 129 16 November 2021

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Land and Environment Court Act 1979 (NSW) ss 34AA, 39A (repealed)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

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…

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 Bilotta v Inner West Council

Details

AGLC: Bilotta v Inner West Council [2021] NSWLEC 129
Case: [2021] NSWLEC 129
Decision Date: 16 November 2021

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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Citations

AGLC Citation

Bilotta v Inner West Council [2021] NSWLEC 129

Most Recent Citation

Bilotta v Inner West Council [2022] NSWLEC 1058

Cases citing this decision · 3 of 3 shown

The Owners Strata Plan No. 20548 v Mount Street 4 Pty Ltd aft Mount Street 4 Unit Trust
[2024] NSWLEC 101

…111 Barr Property and Planning Pty Ltd v Cessnock City Council [2021] NSWLEC 20 Bilotta v Inner West Council (2021) 252 LGERA 10; [2021] NSWLEC 129 Ross v Lane Cove Council (2014) 86 NSWLR 34; (2014) 199 LGERA 298; [2014] NSWCA 50 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA…
Nusalim v North Sydney Council
[2022] NSWLEC 72 Para 8

…hich my attention has been drawn by Mr Seymour, appearing for the Applicants for Joinder, was what was said by Pain J in Bilotta v Inner West Council [2021] NSWLEC 129 at [62] - that the Applicant's assurance that the commissioner presiding at a s 34AA conciliation conference will have to address his mind to jurisdi…
Bilotta v Inner West Council
[2022] NSWLEC 1058 Para 3

…On 16 November 2021, two objectors were joined to the proceedings ( Bilotta v Inner West Council [2021] NSWLEC 129). Each intervenor owns and occupies a property adjoining the site.…

View all 3 citing cases →

Cases cited in this decision · 10 of 10 shown

Ku-ring-gai Council v Buyozo Pty Ltd
[2021] NSWCA 177 Para 33

…for joinder in the Lift Overrun Appeal are lent force by the observations of Preston CJ in Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177 ( Buyozo ) at [39]-[45]. Works cannot be retrospectively approved by modification of a development consent. It is unclear from the current Class 1 ap…
Barr Property and Planning Pty Ltd v Cessnock City Council
[2021] NSWLEC 20 Para 26

…etion to join parties to Class 1 proceedings under s 8.15(2) of the EPA Act of Pepper J in Barr Property and Planning Pty Ltd v Cessnock City Council [2021] NSWLEC 20 ( Barr ) at [50]-[53], citing the principles in Morrison Design Partnership v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802 ( Morrison…
Arrage v Inner West Council
[2019] NSWLEC 85 Para 31

…In relation to proposed contention 2, the Applicants for joinder relied on Arrage v Inner West Council [2019] NSWLEC 85 ( Arrage ) at [24]-[28] (Preston CJ). These paragraphs outline what is required when considering the “substantially the same” test under s 4.55(1A) of the EPA Act. “Substantially” means “essential…
Al Maha Pty Ltd v Huajun Investments Pty Ltd
[2018] NSWCA 245 Para 49

…considered regardless of whether the sections are expressly raised in the SOFACs: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245. That those jurisdictional matters are not expressly raised is not a reason for joinder. In any case, no additional experts are needed to deal with t…
Dravin Pty Ltd v Blacktown City Council
[2017] NSWLEC 38 Para 30

…as granted and as modified but a qualitative and quantitative appreciation of the environmental impacts: Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38 at [57] (Preston CJ).…
Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2)
[2012] NSWLEC 243 Para 57

…y, if they are, does the exercise of discretion justify an order for joinder being made, see Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 at [44]. Morrison Design at [41]-[54] identified that the section (then s 39A of the LEC Act) was not intended to be a plenary power allowing in all…
Taylor v Bathurst Regional Council
[2012] NSWLEC 1140

…roperty 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 Counc…
Morrison Design Partnership v North Sydney Council
[2007] NSWLEC 839 Para 26

…he EPA Act of Pepper J in Barr Property and Planning Pty Ltd v Cessnock City Council [2021] NSWLEC 20 ( Barr ) at [50]-[53], citing the principles in Morrison Design Partnership v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802 ( Morrison Design ) at [42]-[61] (Preston CJ) in relation to s 39A of the Land and Environment Court Act 1979 (NSW)…
Morrison Design Partnership Pty Ltd v North Sydney Council
[2007] NSWLEC 802 Para 26

…ity Council [2021] NSWLEC 20 ( Barr ) at [50]-[53], citing the principles in Morrison Design Partnership v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802 ( Morrison Design ) at [42]-[61] (Preston CJ) in relation to s 39A of the Land and Environment Court Act 1979 (NSW) (LEC Act), the predecessor provis…
King v Bathurst Regional Council
[2006] NSWLEC 505 Para 30

…nmental impact. This requires a “very small” or negligible impact ( King, Marwick, Taylor & Ors v Bathurst Regional Council (2006) 150 LGERA 362; [2006] NSWLEC 505 (Jagot J) at [84]) and the Council could not be satisfied that the modification would have an effect able to be characterised in those terms. The task re…

Legislation cited in this decision · 4

Environmental Planning and Assessment Act 1979 (NSW)
109F, 4.55, 8.15, 8.9 5 mentions (from Para 1)
Land and Environment Court Act 1979 (NSW)
34AA, 39A 3 mentions (from Para 26)
Civil Procedure Act 2005 (NSW)
56 2 mentions (from Para 46)
Uniform Civil Procedure Rules 2005 (NSW)
6.24 2 mentions (from Para 1)

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