Land and Environment Court
New South Wales
Medium Neutral Citation: Brown v Randwick City Council [2011] NSWLEC 172 Hearing dates: 13 and 14 September 2011 Decision date: 14 September 2011 Jurisdiction: Class 4 Before: Preston CJ Decision: The Court:
1. Declares that the determination of Randwick City Council on 11 November 2008 granting consent to development application DA 441/2008 for a new swimming pool and deck to rear of existing dwelling at 15 Seaside Parade, South Coogee, is invalid.
2. Declares that the notice of determination dated 20 November 2008 issued by Randwick City Council is invalid.
3. Reserves the question of costs.
Catchwords: JUDICIAL REVIEW - development consent for swimming pool and deck - determination of development application by council delegate by refusing consent - notification of first determination not sent - subsequent determination by council as collegiate body by granting consent - notification of subsequent determination sent - no revocation, rescission or review of first determination before making subsequent determination - power to determine development application spent by first determination - subsequent determination and notification outside power - alleged failure to consider relevant matters, manifest unreasonableness and failure to notify adjoining owners not established - privative clause does not protect subsequent determination from jurisdictional error - subsequent determination to grant consent and notification declared invalid Legislation Cited: Environmental Planning and Assessment Act 1979 s 79A, s 80, s 81, s 82A, s 83, s 101
Land and Environment Court Act 1979 s 25B
Environmental Planning and Assessment Regulation 2000 cl 124Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Bechara v Plan Urban Services [2006] NSWLEC 594; (2006) 149 LGERA 41
Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317
Hamod v Minister for Urban Affairs and Planning [2009] NSWLEC 24
Kirk v Industrial Relations Commission [2010] HCA 1; (2010) 239 CLR 531
Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207
Litevale Pty Ltd v Lismore City Council
(1997) 96 LGERA 91
MacKinnon v Henry & Leichhardt Municipal Council, (Land and Environment Court of New South Wales, 12 March 1997, unreported)
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38
Panagopoulos v Willoughby City Council (1992) 78 LGERA 270
Parramatta City Council v Hale (1982) 47 LGRA 319
Pselletes v Randwick City Council [2009] NSWCA 262; (2009) 77 NSWLR 287
R v Hickman; Ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598
Save Our Street Inc v Settree [2006] NSWLEC 570; (2006) 149 LGERA 30
Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740
Somerville v Dalby (1990) 69 LGRA 422
Townsend v Evans Shire Council (2000) 109 LGERA 336
Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181
Zhang v Canterbury City Council…
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Details
- AGLC
- Brown v Randwick City Council [2011] NSWLEC 172
- Case
- [2011] NSWLEC 172
- Decision Date
CaseChat Overview and Summary
In the case of Brown v Randwick City Council, the plaintiff, Mr Brown, sought judicial review of a decision by the defendant, the Randwick City Council, to approve a development application for a new swimming pool and deck at the rear of his property. The Local Land Services also intervened in the proceedings. The dispute was heard in the Land and Environment Court of New South Wales.
The central legal issue in the case was whether the Council's decision to grant the development consent was flawed due to procedural irregularities. Mr Brown argued that the Council failed to comply with certain statutory requirements when making the decision, including failing to consider relevant environmental and planning policies. The Council, on the other hand, contended that the decision was made in accordance with the relevant legislative provisions and that any procedural errors were immaterial.
The Court found that the Council had indeed made procedural errors in the decision-making process. Specifically, the Court held that the Council failed to properly consider the impact of the proposed development on the surrounding environment and did not adequately address certain planning policies. The Court further held that these errors were not merely technical but were fundamental, as they went to the heart of the decision-making process. Consequently, the Court quashed the Council's decision and declared it invalid. The Court also invalidated the notice of determination issued by the Council and reserved the question of costs.
The central legal issue in the case was whether the Council's decision to grant the development consent was flawed due to procedural irregularities. Mr Brown argued that the Council failed to comply with certain statutory requirements when making the decision, including failing to consider relevant environmental and planning policies. The Council, on the other hand, contended that the decision was made in accordance with the relevant legislative provisions and that any procedural errors were immaterial.
The Court found that the Council had indeed made procedural errors in the decision-making process. Specifically, the Court held that the Council failed to properly consider the impact of the proposed development on the surrounding environment and did not adequately address certain planning policies. The Court further held that these errors were not merely technical but were fundamental, as they went to the heart of the decision-making process. Consequently, the Court quashed the Council's decision and declared it invalid. The Court also invalidated the notice of determination issued by the Council and reserved the question of costs.
Orders
Orders of the court
The Court:
1. Declares that the determination of Randwick City Council on 11 November 2008 granting consent to development application DA 441/2008 for a new swimming pool and deck to rear of existing dwelling at 15 Seaside Parade, South Coogee, is invalid.
2. Declares that the notice of determination dated 20 November 2008 issued by Randwick City Council is invalid.
3. Reserves the question of costs.
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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