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Castle Constructions Pty Ltd v North Sydney Council

Castle Constructions Pty Ltd v North Sydney Council

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Case Copied 27 July 2007 78 min read

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Reported Decision: 155 LGERA 52

Appeal Outcome: Special leave application discontinued - 4 October 2007

New South Wales

Court of Appeal

CITATION: Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164

HEARING DATE(S): 5 April 2007

JUDGMENT DATE:
27 July 2007

JUDGMENT OF: Tobias JA at 1; Basten JA at 104; Bell J at 143

DECISION: (a) Appeal allowed; (b) Set aside Order 2 made by Talbot J on 3 August 2006 and in lieu thereof order that the proceedings be remitted to a Commissioner other than the Senior Commissioner for determination in accordance with the reasons of Talbot J as varied by the reasons of the Court of Appeal to the effect that cl 30 of North Sydney Local Environmental Plan 2001 shall have no application to that determination; (c) Order (b) to take effect as of 3 August 2006; (d) The respondent to pay the appellant’s costs of the summons for leave to appeal and of the appeal

CATCHWORDS: LOCAL ENVIRONMENT PLAN – Interpretation – Whether building height provisions are inconsistent – North Sydney Local Environment Plan 2001 cll 28A, 28D, 29, 30, 31, 32 - LAND AND ENVIRONMENT COURT – Appeals – Apprehended bias – Where Senior Commissioner expressed strong opposition to the application – Whether matter should be remitted to a Commissioner other than the Senior Commissioner

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
North Sydney Local Environment Plan 2001
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

CASES CITED: Antoun v The Queen (2006) 80 ALJR 497
[2006] HCA 2
Baulkham Hills Shire Council v Basemount Pty Ltd (2003) 126 LGERA 339
[2003] NSWCA 189
Castle Construction Pty Ltd v North Sydney Council [2006] NSWLEC 5
Castle Construction Pty Ltd v North Sydney Council [2006] NSWLEC 468
Coffs Harbour Environment Centre Inc v Minister for Planning & Anor (1994) 84 LGERA 324
Collector of Customs v Agfa-Gevaert Ltd (1995-1996) 186 CLR 389
[1996] HCA 36
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
[1993] FCA 456
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
[2000] HCA 63
Emanuele v Australian Securities Commission (1997) 188 CLR 114
[1997] HCA 20
Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130
[2006] HCA 5
Hartley Poynton Ltd v Alley (2005) 11 VR 568
[2005] VSCA 53
House v The King (1936) 55 CLR 499
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
[2003] HCA 11
Rajski v Wood (1989) 18 NSWLR 512
Re Refugee Review Tribunal
Ex parte Aala (2000) 204 CLR 82
[2000] HCA 57
Roads and Traffic Authority v Damjanovic (2006) 146 LGERA 403
[2006] NSWCA 166
Seltsam Pty Limited v Ghaleb (2005) 3 DDCR 1
[2005] NSWCA 208
Smith v New South Wales Bar Association (1992) 176 CLR 256
Stead v State Government Insurance Commission (1986) 161 CLR 141
Sweedman v Transport Accident Commission (2006) 224 ALR 625
[2006] HCA 8

PARTIES: Castle Constructions…

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: [2007] NSWCA 164
Decision Date: 27 July 2007

CaseChat Overview and Summary

Castle Constructions Pty Ltd appealed to the Court of Appeal of the Supreme Court of New South Wales against a decision of Talbot J concerning the interpretation of the North Sydney Local Environmental Plan 2001. The dispute centred on whether certain building height provisions within the LEP were inconsistent, and whether the Senior Commissioner of the Land and Environment Court had demonstrated apprehended bias in his handling of the application.

The Court of Appeal was required to determine two primary legal issues. Firstly, it had to consider whether the building height provisions contained in clauses 28A, 28D, 29, 30, 31, and 32 of the North Sydney Local Environmental Plan 2001 were inconsistent. Secondly, the Court had to assess whether the Senior Commissioner's conduct gave rise to a reasonable apprehension of bias, thereby necessitating a remittal of the matter.

The Court of Appeal allowed the appeal, finding that the Senior Commissioner's strong opposition to the application, as expressed during proceedings, created a reasonable apprehension of bias. Consequently, the Court set aside the order made by Talbot J and remitted the proceedings to a Commissioner other than the Senior Commissioner for determination. In its variation of Talbot J's reasons, the Court of Appeal clarified that clause 30 of the North Sydney Local Environmental Plan 2001 was to have no application to that determination. The respondent was ordered to pay the appellant's costs of the summons for leave to appeal and of the appeal.

Orders

Orders of the court

(a) Appeal allowed; (b) Set aside Order 2 made by Talbot J on 3 August 2006 and in lieu thereof order that the proceedings be remitted to a Commissioner other than the Senior Commissioner for determination in accordance with the reasons of Talbot J as varied by the reasons of the Court of Appeal to the effect that cl 30 of North Sydney Local Environmental Plan 2001 shall have no application to that determination; (c) Order (b) to take effect as of 3 August 2006; (d) The respondent to pay the appellant's costs of the summons for leave to appeal and of the appeal

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.

Reported Decision:	155 LGERA 52
Appeal Outcome:	Special leave application discontinued - 4 October 2007

CITATION:	Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164
HEARING DATE(S):	5 April 2007
JUDGMENT DATE:	27 July 2007
JUDGMENT OF:	Tobias JA at 1; Basten JA at 104; Bell J at 143
DECISION:	(a) Appeal allowed; (b) Set aside Order 2 made by Talbot J on 3 August 2006 and in lieu thereof order that the proceedings be remitted to a Commissioner other than the Senior Commissioner for determination in accordance with the reasons of Talbot J as varied by the reasons of the Court of Appeal to the effect that cl 30 of North Sydney Local Environmental Plan 2001 shall have no application to that determination; (c) Order (b) to take effect as of 3 August 2006; (d) The respondent to pay the appellant’s costs of the summons for leave to appeal and of the appeal
CATCHWORDS:	LOCAL ENVIRONMENT PLAN – Interpretation – Whether building height provisions are inconsistent – North Sydney Local Environment Plan 2001 cll 28A, 28D, 29, 30, 31, 32 - LAND AND ENVIRONMENT COURT – Appeals – Apprehended bias – Where Senior Commissioner expressed strong opposition to the application – Whether matter should be remitted to a Commissioner other than the Senior Commissioner
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 North Sydney Local Environment Plan 2001 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005
CASES CITED:	Antoun v The Queen (2006) 80 ALJR 497 [2006] HCA 2 Baulkham Hills Shire Council v Basemount Pty Ltd (2003) 126 LGERA 339 [2003] NSWCA 189 Castle Construction Pty Ltd v North Sydney Council [2006] NSWLEC 5 Castle Construction Pty Ltd v North Sydney Council [2006] NSWLEC 468 Coffs Harbour Environment Centre Inc v Minister for Planning & Anor (1994) 84 LGERA 324 Collector of Customs v Agfa-Gevaert Ltd (1995-1996) 186 CLR 389 [1996] HCA 36 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 [1993] FCA 456 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [2000] HCA 63 Emanuele v Australian Securities Commission (1997) 188 CLR 114 [1997] HCA 20 Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 [2006] HCA 5 Hartley Poynton Ltd v Alley (2005) 11 VR 568 [2005] VSCA 53 House v The King (1936) 55 CLR 499 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 [2003] HCA 11 Rajski v Wood (1989) 18 NSWLR 512 Re Refugee Review Tribunal Ex parte Aala (2000) 204 CLR 82 [2000] HCA 57 Roads and Traffic Authority v Damjanovic (2006) 146 LGERA 403 [2006] NSWCA 166 Seltsam Pty Limited v Ghaleb (2005) 3 DDCR 1 [2005] NSWCA 208 Smith v New South Wales Bar Association (1992) 176 CLR 256 Stead v State Government Insurance Commission (1986) 161 CLR 141 Sweedman v Transport Accident Commission (2006) 224 ALR 625 [2006] HCA 8
PARTIES:	Castle Constructions…