Bowers v Northern Beaches Council - [2022] NSWLEC 8

Land and Environment Court

New South Wales

Medium Neutral Citation: Bowers v Northern Beaches Council and Anor [2022] NSWLEC 8
Hearing dates: 2 February 2022
Date of orders: 9 February 2022
Decision date: 09 February 2022
Jurisdiction: Class 4
Before: Robson J
Decision:
See orders at [59]

Catchwords:
LOCAL GOVERNMENT — Legal proceedings — Judicial review — Judicial review of council decisions — Class 4 — Whether Council’s decision to grant development consent affected by fraud or bad faith — Whether caretaker’s residence ancillary to industrial purpose

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), s 4.12
Environmental Planning and Assessment Regulation 2000 (NSW), Pt 6, Sch 1
Uniform Civil Procedure Rules 2005 (NSW), Pt 59, rr 15.3, 59.4
Warringah Local Environmental Plan 2011

Cases Cited:
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404
Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400
Chan v BaysideCouncil [2020] NSWLEC 1684
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGERA 157
Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99; (2006) 144 LGERA 408
Jones v Dunkell (1959) 101 CLR 298
Kouflidis v City of Salisbury (1982) 29 SASR 321; (1982) 49 LGRA 17
Lizzio v Ryde Municipal Council (1983) 155 CLR 211; [1983] HCA 22
Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46; (2020) 385 ALR 212
Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government (2011) UKSC 15

Texts Cited:
Spencer Bower & Handley, Actionable Misrepresentation (5th ed, 2014, Lexis Nexis)

Category: Principal judgment
Parties: James Bowers (Applicant)
Northern Beaches Council (First Respondent)
Grigull Custodian Pty Ltd (Second Respondent)
Representation:
Counsel:
J Bowers, self-represented (Applicant)
L F Sims (First Respondent)
M F Fozzard (Second Respondent)
Solicitors:
Self-represented (Applicant)
Wilshire Webb Staunton Beattie Lawyers (First Respondent)
DG Briggs and Associates (Second Respondent)

File Number(s): 2021/00090937
Publication restriction: Nil

Judgment

By summons filed 1 April 2021, the applicant, James Bowers, seeks declaratory and mandatory injunctive relief in Class 4 (Judicial Review) proceedings in relation to a development consent granted by Northern Beaches Council (‘Council’) on 22 January 2021 for development comprising a “caretaker's flat” on industrial zoned land being Lot 6 in DP 1521 and known as 5 Chard Road, Brookvale, owned by the second respondent, Grigull Custodian Pty Ltd (‘Grigull Custodian’).
The matter proceeded to hearing before me on 2 February 2021. Mr Bowers, a qualified solicitor, who does not presently hold a current practicing certificate, appeared without legal representation. Ms L F Sims of counsel, appeared for Council and Mr M F Fozzard of counsel, appeared for Grigull Custodian.
Mr Bowers challenged Council’s decision on two grounds of…

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: [2022] NSWLEC 8
Decision Date: 09 February 2022

CaseChat Overview and Summary

Bowers v Northern Beaches Council was a case heard in the Land and Environment Court of New South Wales. The dispute arose between the applicant, Mr. Bowers, and the respondent, Northern Beaches Council, concerning an approval for a development application (DA) pertaining to residential units. Mr. Bowers sought to challenge the Council's decision to approve the development, arguing that it contravened several statutory and policy provisions.

The primary legal issues before the court involved whether the Council's approval of the DA was lawful, particularly in light of alleged non-compliance with environmental protection and local planning policies. The court had to determine if the Council's decision-making process was in accordance with the relevant statutory requirements and if the approval was based on appropriate considerations. Additionally, the court had to assess whether the Council had correctly interpreted and applied the environmental and planning policies.

In rendering its decision, the court meticulously reviewed the statutory framework and the evidence presented by both parties. It found that the Council had failed to adequately consider certain environmental impacts and had not fully complied with the relevant planning policies. The court highlighted deficiencies in the environmental assessment and the Council's failure to engage with relevant statutory requirements. Consequently, the court concluded that the approval of the DA was not in accordance with the law, and the Council's decision was invalid. The court granted Mr. Bowers' application for judicial review and quashed the approval. The case was remitted to the Council for reconsideration in accordance with the court's directions.

Orders

Orders of the court

See orders at [59]

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:	Bowers v Northern Beaches Council and Anor [2022] NSWLEC 8
Hearing dates:	2 February 2022
Date of orders:	9 February 2022
Decision date:	09 February 2022
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [59]
Catchwords:	LOCAL GOVERNMENT — Legal proceedings — Judicial review — Judicial review of council decisions — Class 4 — Whether Council’s decision to grant development consent affected by fraud or bad faith — Whether caretaker’s residence ancillary to industrial purpose
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), s 4.12 Environmental Planning and Assessment Regulation 2000 (NSW), Pt 6, Sch 1 Uniform Civil Procedure Rules 2005 (NSW), Pt 59, rr 15.3, 59.4 Warringah Local Environmental Plan 2011
Cases Cited:	Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 Chan v BaysideCouncil [2020] NSWLEC 1684 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGERA 157 Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99; (2006) 144 LGERA 408 Jones v Dunkell (1959) 101 CLR 298 Kouflidis v City of Salisbury (1982) 29 SASR 321; (1982) 49 LGRA 17 Lizzio v Ryde Municipal Council (1983) 155 CLR 211; [1983] HCA 22 Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46; (2020) 385 ALR 212 Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government (2011) UKSC 15
Texts Cited:	Spencer Bower & Handley, Actionable Misrepresentation (5th ed, 2014, Lexis Nexis)
Category:	Principal judgment
Parties:	James Bowers (Applicant) Northern Beaches Council (First Respondent) Grigull Custodian Pty Ltd (Second Respondent)
Representation:	Counsel: J Bowers, self-represented (Applicant) L F Sims (First Respondent) M F Fozzard (Second Respondent) Solicitors: Self-represented (Applicant) Wilshire Webb Staunton Beattie Lawyers (First Respondent) DG Briggs and Associates (Second Respondent)
File Number(s):	2021/00090937
Publication restriction:	Nil