Carriage v Stockland Development Pty Ltd & Ors - [2004] NSWLEC 541

Land and Environment Court

of New South Wales

CITATION: Carriage v Stockland Development Pty Ltd & Ors [No 6] [2004] NSWLEC 541

PARTIES:
APPLICANT
Allen Carriage
FIRST RESPONDENT
Stockland Development Pty Limited
SECOND RESPONDENT
Director-General of the National Parks and Wildlife Service of New South Wales
FIFTH RESPONDENT
T G Gibson Pty Limited

FILE NUMBER(S): 40863 of 2002

CORAM: Pain J

KEY ISSUES: Judicial Review :- Validity of construction certificate - Reasonableness of certifier's decision - Compliance with development consent - Validity of permit granted under s 90(2) of the National Parks and Wildlife Act 1974 - denial of proceedual fairness and failure to take into account mandatory relevant considerations

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 76A(1), s 80(12)
Environmental Planning and Assessment Regulation 2000, cl 139(1)(a), cl 145(2)
National Parks and Wildlife Act 1974, s 90, s 118A s 118D
Wollongong Local Environmental Plan 1990

CASES CITED: Carriage v Stockland (Constructors) Pty Ltd and Ors [2002] NSWLEC 216 ;
Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84;
Kioa v West (1985) 158 CLR 550;
Lesnewski v Mosman Municipal Council and Anor [2004] NSWLEC 99 ;
Price v Elder (2000) 97 FCR 218;
Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 195 ALR 502 ;
Somerville v Dalby (1990) 69 LGRA 422 ;
Stockland Constructors Pty Limited v Wollongong City Council and Anor, 8 October 2001, Unreported;
Weal v Bathurst City Council (2000) 111 LGERA 181

DATES OF HEARING: 29/03/2004
30/03/2004
31/03/2004
01/04/2004
02/04/2004
05/04/2004
06/04/2004
08/04/2004
06/05/2004
15/05/2004
02/06/2004
03/06/2004
23/06/2004
28/06/2004

DATE OF JUDGMENT: 09/28/2004

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Oshlack (agent)
FIRST AND FIFTH RESPONDENTS
Mr Craig QC instructed by Baker and Mackenzie
SECOND RESPONDENT
Mr Robertson SC with Ms Pearson instructed by the National Parks and Wildlife Service of New South Wales

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

28 SEPTEMBER 2004

40863 of 2002 ALLEN CARRIAGE v STOCKLAND DEVELOPMENT PTY LTD & ORS
JUDGMENT NO 6

1 HER HONOUR: The Applicant, Mr Allan Carriage, has commenced Class 4 proceedings seeking numerous declarations and orders in relation to certain parts of the land at Sandon Point, Wollongong on which a company formerly known as Stockland (Constructors) Pty Limited and now known as Stockland Development Pty Ltd, the First Respondent, is carrying out development.

2 The grounds which the Applicant relies on to support the declarations and orders which he seeks can be summarised as follows:

· Ground 1: The Lot 235 Earthworks

Environmental Planning and Assessment Act 1979

EP&A Act

· Ground 2: Invalidity of the Construction Certificates

That the construction certificates issued by the Fifth Respondent which certified the fill on land known as “Lot 235” are invalid.

· Ground 3: The Endangered Ecological Community

That the…

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: [2004] NSWLEC 541
Decision Date: 09/28/2004

CaseChat Overview and Summary

The Applicant, Mr Allan Carriage, sought to challenge the validity of various construction certificates issued in relation to a development consent granted to Stockland Development Pty Limited (First Respondent). The Applicant also sought to challenge the validity of a permit issued under the National Parks and Wildlife Act 1974 (NP&W Act) to the First Respondent by the Director-General of the National Parks and Wildlife Service of New South Wales (Second Respondent). The Applicant's case was based on various grounds, including the alleged invalidity of construction certificates and permits, and the failure of the certifiers to take into account relevant considerations. The First and Fifth Respondents argued that the construction certificates issued by the Fifth Respondent were valid and that the Applicant could only challenge the validity of those certificates by proving that the decision of the certifier to issue the certificates was unreasonable. The Second Respondent argued that it had not failed to take into account relevant considerations in issuing Permit 1427, and that any legitimate expectation the Applicant had of being consulted prior to the issuance of the permit was satisfied. The Court found that the construction certificates were invalid because the Fifth Respondent's decision to issue them was unreasonable, as the fill placed on Lot 235 was not authorised by the development consent. The Court also found that the Second Respondent had not failed to take into account relevant considerations in issuing Permit 1427, and that any legitimate expectation the Applicant had of being consulted prior to the issuance of the permit was satisfied. The Applicant was unsuccessful in relation to Grounds 4 and 5, and the interlocutory injunction issued by the Court on 20 November 2002 was dissolved. The matter was listed for mention before the Court at 9:30 am on 13 October 2004, and the question of costs was reserved.

Orders