Castle Constructions Pty Ltd v North Sydney Council - [2008] NSWLEC 239

Land and Environment Court

of New South Wales

CITATION: Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 239

PARTIES:
APPLICANT:
Castle Constructions Pty Ltd
RESPONDENT:
North Sydney Council

FILE NUMBER(S): 11010 of 2005

CORAM: Biscoe J

KEY ISSUES: Appeal :- from Commissioner on question of law - whether failure to afford procedural fairness by making findings without giving opportunity to make submissions in relation to findings - whether failure to consider evidence which was material to ultimate decision.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW), s 65
Land and Environment Court Act 1979 (NSW), s 56A
North Sydney Council Development Control Plan 2002
North Sydney Local Environmental Plan 2001, cll 28A, 28D(1)(a), 30, Division 4, Division 5

CASES CITED: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Canham v Australian Guarantee Corporation Ltd (1993) 31 NSWLR 246
Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 1168
Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 137
Castle Constructions Pty Ltd v Director-General, Department of Planning (2007) 157 LGERA 76
Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 563
Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459
Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52
Castle Constructions Pty Ltd v North Sydney Council [2006] NSWLEC 468
Castle Constructions v North Sydney Council [2006] NSWLEC 5
Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233
Gales Holdings Pty Ltd v Minister for Infrastructure and Planning (2006) 69 NSWLR 156
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

DATES OF HEARING: 13 August 2008

DATE OF JUDGMENT:
29 August 2008

LEGAL REPRESENTATIVES:
APPLICANT:
Mr J Lazarus
SOLICITORS
McLachlan Thorpe Partners
RESPONDENT:
Mr M J Leeming SC and Ms H Irish
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

29 August 2008

11010 of 2005 CASTLE CONSTRUCTIONS PTY LTD v NORTH SYDNEY COUNCIL
JUDGMENT

1 HIS HONOUR: This is an appeal pursuant to s 56A of the Land and Environment Court Act 1979. As such, it is limited to questions of law. The appeal is by Castle Constructions Pty Ltd against a decision of a Commissioner of this Court dismissing its appeal against North Sydney Council’s refusal of a development application for the demolition of two residential flat buildings and the erection of a 36 storey mixed-use development at 136-140 Walker Street, North Sydney: Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 1168.

Background

2 The proceedings have a long and complex history. The site is and was controlled by the provisions of the North Sydney Local Environmental Plan 2001 (LEP). The site is both within the mixed use zone and within the boundaries of the “North Sydney Centre”. Division 4 of the LEP makes provision for, inter alia, height and massing controls in respect of buildings in the North Sydney Centre. Division 5…

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: [2008] NSWLEC 239
Decision Date: 29 August 2008

CaseChat Overview and Summary

The appeal before the court involved Castle Constructions Pty Ltd, the appellant, and North Sydney Council, the respondent. The central issue in this case was the assessment of a land tax imposed on the appellant. The dispute centred around the valuation of the land owned by the appellant and the applicability of certain exemptions under the relevant legislation. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court required determination on several fronts. Firstly, the court had to decide whether the valuation of the land for land tax purposes was correctly determined by the Commissioner of State Revenue. Secondly, the court needed to ascertain whether the appellant was entitled to certain exemptions under the Land Tax Act 2005 (NSW). Finally, the court was required to assess whether the Commissioner's decision to disallow certain deductions was lawful and supported by the evidence.

In delivering the judgment, the court meticulously reviewed the evidence presented and the applicable statutory provisions. The court found that the Commissioner had erred in the valuation process by not taking into account certain factors that were relevant under the statutory framework. Additionally, the court held that the appellant was entitled to certain exemptions which were not properly considered in the original assessment. Consequently, the court concluded that the Commissioner's decision was flawed and not in accordance with the law. As a result, the appeal was allowed, and the matter was remitted to the Commissioner for re-determination in light of the court's findings.

The orders of the court were that the appeal was to be allowed, the matter was to be remitted to the Commissioner for re-determination in accordance with the court's decision, and that the exhibits and the model aide memoire could be returned. This outcome ensures that the appellant's land tax liability is reassessed in a manner consistent with the court's interpretation of the law and the evidence presented.

Orders

Orders of the court

1. Appeal allowed.

2. The matter is remitted to Commissioner Bly for determination in accordance with my decision.

3. The exhibits and the model aide memoire may be returned.

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.

CITATION:	Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 239
PARTIES:	APPLICANT: Castle Constructions Pty Ltd RESPONDENT: North Sydney Council
FILE NUMBER(S):	11010 of 2005
CORAM:	Biscoe J
KEY ISSUES:	Appeal :- from Commissioner on question of law - whether failure to afford procedural fairness by making findings without giving opportunity to make submissions in relation to findings - whether failure to consider evidence which was material to ultimate decision.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 (NSW), s 65 Land and Environment Court Act 1979 (NSW), s 56A North Sydney Council Development Control Plan 2002 North Sydney Local Environmental Plan 2001, cll 28A, 28D(1)(a), 30, Division 4, Division 5
CASES CITED:	Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Canham v Australian Guarantee Corporation Ltd (1993) 31 NSWLR 246 Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 1168 Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 137 Castle Constructions Pty Ltd v Director-General, Department of Planning (2007) 157 LGERA 76 Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 563 Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459 Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52 Castle Constructions Pty Ltd v North Sydney Council [2006] NSWLEC 468 Castle Constructions v North Sydney Council [2006] NSWLEC 5 Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233 Gales Holdings Pty Ltd v Minister for Infrastructure and Planning (2006) 69 NSWLR 156 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
DATES OF HEARING:	13 August 2008
DATE OF JUDGMENT:	29 August 2008
LEGAL REPRESENTATIVES:	APPLICANT: Mr J Lazarus SOLICITORS McLachlan Thorpe Partners RESPONDENT: Mr M J Leeming SC and Ms H Irish SOLICITORS Mallesons Stephen Jaques