Carriage v Stockland Development Pty Ltd & Ors - [2004] NSWLEC 148

Land and Environment Court

of New South Wales

CITATION: Carriage v Stockland Development Pty Ltd & Ors [No 7] [2004] NSWLEC 148

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

FILE NUMBER(S): 40863 of 2002

CORAM: Pain J

KEY ISSUES: Judicial Review :- Validity of construction certificate following finding that certifier's decision to issue was manifestly unreasonable

LEGISLATION CITED: Wollongong Local Environmental Plan 1990
Environmental Planning and Assessment Act 1979, s 81A(5), s 124
Environmental Planning and Assessment Regulation 2000, cl 145(2)
National Parks and Wildlife Act 1974, s 90

CASES CITED: Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGRA 294;
Carriage v Stockland Development Pty Ltd & Ors [No 6] [2004] NSWLEC 541;
Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 343;
F Hannan Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306;
Hillpalm v Heaven's Door Pty Ltd [4004] HCA 59 (1 December 2004);
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597;
Moy v Warringah Council [2004] NSWCCA 77;
Oshlack v Iron Gates Pty Ltd (1997) 130 LGERA 189;
Oshlack v Iron Gates Pty Ltd [1997] NSWLEC 89 (4 July 1997);
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476;
Stockland Constructors Pty Limited v Wollongong City Council and Anor, 8 October 2001, unreported, per Watts C, Hussey C;
Wechsler v Auburn Council (1997) 130 LGERA 134

DATES OF HEARING: 13/12/2004

DATE OF JUDGMENT: 12/16/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr T. Robertson instructed by Shaw Reynolds Lawyers
FIRST AND FIFTH RESPONDENTS:
Mr Craig QC instructed by Baker and Mackenzie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PAIN J

16 December 2004

40863 of 2002 ALLAN CARRIAGE v STOCKLAND DEVELOPMENT PTY LTD & ORS
JUDGMENT NO 7

Background

1 Her Honour: On 8 October 2001 this Court granted consent, subject to conditions, to “five integrated development applications to create eighty-nine conventional detached housing allotments, three super allotments for future medium density housing development and three residue lots which are for future development or are zoned open space, lodged in August 2000, for land at Sandon Point described as Lots 3 and 4 in Deposited Plan 99955, Lot 1 in Deposited Plan 365268, part Lot 4 in Deposited Plan 231244, part Lot 2 in Deposited Plan 365268 and Lot 2 in Deposited Plan 588060”; Stockland Constructors Pty Limited v Wollongong City Council and Anor, (8 October 2001, unreported, per Watts C, Hussey C). This consent is referred to as the “Stages 2-6 Consent”. Stockland Development Pty Ltd, the First Respondent, has carried out development authorised by the Stages 2-6 Consent.

2 The Stages 2–6 Consent granted approval to, amongst other things, the creation of a lot described as Residue Lot 235, depicted on Plan 31-137-DA2 Revision E dated 5 October 2001, which is one of the plans…

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 148
Decision Date: 12/16/2004

CaseChat Overview and Summary

This case concerned a dispute regarding the validity of construction certificates issued by the Fifth Respondent to the First Respondent for certain works carried out on Lot 235. The Applicant challenged the validity of the construction certificates on the basis that the certifier's decision to issue them was manifestly unreasonable. The Applicant argued that the construction certificates should be declared invalid as the works they certified were not consistent with the development consent. The First and Fifth Respondents argued that the construction certificates should not be declared invalid as such a declaration would lack utility. The Court was required to decide whether to declare the construction certificates invalid in whole or in part and, if invalid, what orders, if any, should be made. The Court found that the construction certificates were invalid to the extent that they referred to work relating to that part of Lot 235 zoned residential 2(b) under the Wollongong Local Environmental Plan 1990. The Court made the following declarations: (1) Construction Certificates 214/02 and 215/02 issued by the Fifth Respondent to the First Respondent on or about 8 February 2002 are, to the extent that they refer to work relating to that part of Lot 235 DP1048602 zoned residential 2(b) under the Wollongong Local Environmental Plan 1990, invalid; (2) The First Respondent by itself, its servants, agents and contractors has carried out development requiring development consent on that part of Lot 235 zoned residential 2(b) under the Wollongong Local Environmental Plan 1990 without first obtaining a valid development consent in breach of s 76A(1) of the Environmental Planning & Assessment Act 1979; and (3) Costs are reserved.

Orders