New South Wales
Court of Appeal
CITATION: Castle Constructions Pty Limited v North Sydney Council [2009] NSWCA 169 HEARING DATE(S): 24 June 2009
JUDGMENT DATE:
24 June 2009JUDGMENT OF: Campbell JA at 1, 36; Macfarlan JA at 35 EX TEMPORE JUDGMENT DATE: 24 June 2009 DECISION: Application for leave to appeal dismissed with costs. CATCHWORDS: APPEAL – appeal – Land and Environment Court – leave to appeal to the Court of Appeal – whether to grant leave to appeal under section 57(4) Land and Environment Court Act 1979 – appeal from a section 56A decision of a judge of the Land and Environment Court – factors influencing the decision whether or not to grant leave to appeal – whether the existence of a subsequent successful development application is a ground to refuse leave – weight to be given to a draft Local Environmental Plan not properly exhibited to the public – weight to be given to procedural history which discloses multiple rejections of the Development Application on the merits – whether appeal has sufficient prospects of success – ENVIRONMENT AND PLANNING – building control – decision to grant Development Approval – Land and Environment Court – appeal from decision of a Commissioner under section 56A Land and Environment Court Act – proper approach to reviewing findings of a Commissioner – review of findings should be taken as a whole and in their context LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979CATEGORY: Principal judgment CASES CITED: Castle Constructions Pty Ltd v North Sydney Council [2006] NSWLEC 5
Castle Constructions Pty Ltd v North Sydney Council [2006] NSWLEC 468
Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52
Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 1168
Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 239
Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 1456
Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 137
Castle Constructions Pty Ltd v North Sydney Council [2009] NSWLEC 18PARTIES: Castle Constructions Pty Limited (Applicant)
North Sydney Council (Respondent)FILE NUMBER(S): CA 40072/09 COUNSEL: TF Robertson SC; JE Lazarus (Applicant)
MJ Leeming SC; HP Irish (Respondent)SOLICITORS: McLachlan Thorpe Partners (Applicant)
Mallesons Stephen Jaques (Respondent)LOWER COURT JURISDICTION: Land & Environment Court LOWER COURT FILE NUMBER(S): 11010/05 LOWER COURT JUDICIAL OFFICER: Pain J LOWER COURT DATE OF DECISION: 27 February 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Castle Constructions Pty Limited v North Sydney Council [2009] NSWLEC 18
CA 40072/09
24 JUNE 2009CAMPBELL JA
MACFARLAN JA
CASTLE CONSTRUCTIONS PTY LTD v NORTH SYDNEY COUNCIL
Ex Tempore Judgment
1 CAMPBELL JA: This is an application for leave to appeal from a decision of Pain J in the Land and Environment Court in which her Honour dismissed an appeal on a question of law from the Commissioner: Castle Constructions Pty Ltd v North Sydney Council [2009] NSWLEC 18. That appeal to Pain J had…
Keep reading for free
Create a free CaseChat account to read Castle Constructions Pty Limited v North Sydney Council and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2009] NSWCA 169
- Decision Date
CaseChat Overview and Summary
Castle Constructions Pty Limited appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court. The dispute concerned the Land and Environment Court's refusal to grant leave to appeal against a decision made by a Commissioner under section 56A of the *Land and Environment Court Act 1979* (NSW). This section allows for appeals from a Commissioner's decision to a judge of the Land and Environment Court.
The Court of Appeal was required to determine whether to grant leave to appeal from the judge's decision refusing leave to appeal the Commissioner's decision. Key issues included the factors to be considered when deciding whether to grant leave under section 57(4) of the Act, specifically whether the subsequent success of a development application could be a ground for refusing leave, the weight to be given to a draft Local Environmental Plan not properly exhibited, and the significance of the procedural history involving multiple rejections of the development application on its merits. The court also considered whether the appeal had sufficient prospects of success.
Campbell JA, with whom Macfarlan JA agreed, reasoned that the appeal had no real prospect of success. His Honour noted that the Commissioner's decision had been reviewed by a judge of the Land and Environment Court, and that the appeal to the Court of Appeal was from that judge's refusal of leave. The court considered the multiple rejections of the development application on the merits and the fact that the draft Local Environmental Plan had not been properly exhibited, concluding that these factors did not create a sufficient basis for granting leave to appeal. The proper approach to reviewing a Commissioner's findings was to consider them as a whole and in their context.
The application for leave to appeal was dismissed, and Castle Constructions Pty Limited was ordered to pay the costs of the application.
The Court of Appeal was required to determine whether to grant leave to appeal from the judge's decision refusing leave to appeal the Commissioner's decision. Key issues included the factors to be considered when deciding whether to grant leave under section 57(4) of the Act, specifically whether the subsequent success of a development application could be a ground for refusing leave, the weight to be given to a draft Local Environmental Plan not properly exhibited, and the significance of the procedural history involving multiple rejections of the development application on its merits. The court also considered whether the appeal had sufficient prospects of success.
Campbell JA, with whom Macfarlan JA agreed, reasoned that the appeal had no real prospect of success. His Honour noted that the Commissioner's decision had been reviewed by a judge of the Land and Environment Court, and that the appeal to the Court of Appeal was from that judge's refusal of leave. The court considered the multiple rejections of the development application on the merits and the fact that the draft Local Environmental Plan had not been properly exhibited, concluding that these factors did not create a sufficient basis for granting leave to appeal. The proper approach to reviewing a Commissioner's findings was to consider them as a whole and in their context.
The application for leave to appeal was dismissed, and Castle Constructions Pty Limited was ordered to pay the costs of the application.
Orders
Orders of the court
Application for leave to appeal dismissed with costs.
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.