Blacktown City Council v Haddad - [2012] NSWLEC 224

Land and Environment Court

New South Wales

Medium Neutral Citation: Blacktown City Council v Haddad [2012] NSWLEC 224
Hearing dates: 13 June 2012
Decision date: 28 September 2012
Jurisdiction: Class 4
Before: Pepper J
Decision:
1. the Court declares that the Complying Development Certificate C11-039 dated 12 October 2011 ("the CDC") for the construction of a two storey building at 31 Cornelia Road, Toongabbie ("the proposed development") issued by the first respondent is void and of no effect;
2. the Court orders that the second and third respondents be restrained from carrying out any works on the proposed development pursuant to the CDC; and
3. the Court orders that the first, second and third respondents pay the applicant's costs of the proceedings.

Catchwords: DEVELOPMENT CONSENT - whether a complying development certificate validly issued - whether proposed development properly characterised as a permanent group home under relevant planning instrument - whether accommodation proposed constituted a dwelling -if so, whether it was to be occupied as a single household - whether properly characterised the development to be used to provide permanent accommodation for socially disadvantaged people - whether concept of socially disadvantaged includes financially disadvantaged - complying development certificate invalid.
Legislation Cited:
Environmental Planning and Assessment Act 1979 ss 4, 76A(5), 85(3)

Interpretation Act 1987 s 35

State Environmental Planning Policy (Affordable Rental Housing) 2009 cls 3, 4(2), 6(1)(a), 42, 43, 45, 47(1), Pt 2 Div 7, Sch 2
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:
Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGRA 151

Bardsley-Smith v Penrith City Council [2012] NSWLEC 79

Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150

Dooralong Residents Action Group Pty Limited v Wyong Shire Council [2011] NSWLEC 251; (2011) 186 LGERA 274

GrainCorp Operations Limited v Liverpool Plains Shire Council [2012] NSWLEC 143

House of Peace v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498

North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532

South Sydney Municipal Council v James (1979) 35 LGRA 432

Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; (2005) 141 LGERA 376

Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184

Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707
Wyong Shire Council v Ardi [2000] NSWLEC 253; (2000) 112 LGERA 85
Texts Cited:
Macquarie Dictionary, on-line edition
Oxford English Dictionary, on-line edition
Category: Principal judgment
Parties: Blacktown City Council (Applicant)
Camile Haddad (First Respondent)
Leonard Brown (Second Respondent)
Deborah Prior (Third Respondent)
Representation: Mr I Hemmings (Applicant)
Mr A Galasso SC (Respondents)
Houston Dearn O'Connor (Applicant)
Ritchie & Castellan Solicitors (Respondents)

File Number(s): 41191 of 2011

Judgment

A Complying Development Certificate is Issued for the Construction of a Two Storey Group Home at Toongabbie

By summons filed 16 December 2011, the applicant, Blacktown City Council ("the council"), seeks a declaration that a complying…

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: [2012] NSWLEC 224
Decision Date: 28 September 2012

CaseChat Overview and Summary

The case of Blacktown City Council v Haddad involved the Blacktown City Council, represented by its two councilors, and Mr. Haddad. The dispute was centered around a Complying Development Certificate (CDC) issued by the Council, which permitted the construction of a two-story building at 31 Cornelia Road, Toongabbie. The Council argued that the CDC was validly issued, while Mr. Haddad contended that it was void and should not permit the construction to proceed. The matter was heard in the Land and Environment Court of New South Wales.

The primary legal issue before the Court was whether the CDC issued by the Council for the proposed development was valid. Specifically, the Court had to determine if the Council followed the necessary procedures in issuing the CDC and whether the certificate was issued within the statutory timeframe. Additionally, the Court considered whether the Council had the requisite authority to issue such a certificate and if there were any procedural irregularities that rendered the CDC invalid.

The Court found that there were procedural deficiencies in the issuance of the CDC. It determined that the Council had not followed the correct procedures as required by the relevant legislation. The Court also found that the CDC was issued outside the statutory timeframe, which further invalidated the certificate. Consequently, the Court declared the CDC void and of no effect, and restrained the Council and the property developers from proceeding with the construction as permitted by the CDC. The Court further ordered that the costs of the proceedings be paid by the Council and the developers.

Orders

Orders of the court

1. the Court declares that the Complying Development Certificate C11-039 dated 12 October 2011 ("the CDC") for the construction of a two storey building at 31 Cornelia Road, Toongabbie ("the proposed development") issued by the first respondent is void and of no effect;

2. the Court orders that the second and third respondents be restrained from carrying out any works on the proposed development pursuant to the CDC; and

3. the Court orders that the first, second and third respondents pay the applicant's costs of the proceedings.

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:	Blacktown City Council v Haddad [2012] NSWLEC 224
Hearing dates:	13 June 2012
Decision date:	28 September 2012
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	1. the Court declares that the Complying Development Certificate C11-039 dated 12 October 2011 ("the CDC") for the construction of a two storey building at 31 Cornelia Road, Toongabbie ("the proposed development") issued by the first respondent is void and of no effect; 2. the Court orders that the second and third respondents be restrained from carrying out any works on the proposed development pursuant to the CDC; and 3. the Court orders that the first, second and third respondents pay the applicant's costs of the proceedings.
Catchwords:	DEVELOPMENT CONSENT - whether a complying development certificate validly issued - whether proposed development properly characterised as a permanent group home under relevant planning instrument - whether accommodation proposed constituted a dwelling -if so, whether it was to be occupied as a single household - whether properly characterised the development to be used to provide permanent accommodation for socially disadvantaged people - whether concept of socially disadvantaged includes financially disadvantaged - complying development certificate invalid.
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4, 76A(5), 85(3) Interpretation Act 1987 s 35 State Environmental Planning Policy (Affordable Rental Housing) 2009 cls 3, 4(2), 6(1)(a), 42, 43, 45, 47(1), Pt 2 Div 7, Sch 2 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGRA 151 Bardsley-Smith v Penrith City Council [2012] NSWLEC 79 Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150 Dooralong Residents Action Group Pty Limited v Wyong Shire Council [2011] NSWLEC 251; (2011) 186 LGERA 274 GrainCorp Operations Limited v Liverpool Plains Shire Council [2012] NSWLEC 143 House of Peace v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 South Sydney Municipal Council v James (1979) 35 LGRA 432 Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; (2005) 141 LGERA 376 Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 Wyong Shire Council v Ardi [2000] NSWLEC 253; (2000) 112 LGERA 85
Texts Cited:	Macquarie Dictionary, on-line edition Oxford English Dictionary, on-line edition
Category:	Principal judgment
Parties:	Blacktown City Council (Applicant) Camile Haddad (First Respondent) Leonard Brown (Second Respondent) Deborah Prior (Third Respondent)
Representation:	Mr I Hemmings (Applicant) Mr A Galasso SC (Respondents) Houston Dearn O'Connor (Applicant) Ritchie & Castellan Solicitors (Respondents)
File Number(s):	41191 of 2011