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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 17 August 2007 73 min read

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Land and Environment Court

of New South Wales

CITATION: Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459

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

FILE NUMBER(S): 41014 of 2006

CORAM: Biscoe J

KEY ISSUES: Judicial Review :- validity or effectiveness of development control plan or certain provisions thereof - whether invalid because did not achieve purpose of local environmental plan or because council did not form the opinion required by statute or because it was not reasonably open to council to form the opinion - whether certain controls in development control plan inconsistent with provisions of local environmental plan and therefore ineffective to extent of inconsistency - purposive construction

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 70, 74C(1)(a) and (5), 79C(1)(a)
Interpretation Act 1987 ss 8(b), 33
North Sydney Local Environmental Plan 2001
North Sydney Development Control Plan 2002

CASES CITED: 7-Eleven Stores v Sydney City Council (2004) 138 LGERA 125;
Al-Kateb v Godwin (2004) 219 CLR 562;
Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229;
Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37;
Bropho v Western Australia (1990) 171 CLR 1;
Butler v Attorney-General (Vic) (1961) 106 CLR 268;
Cabell v Markham 148 F 2d 737 (1945);
Castle Constructions 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;
Coffs Harbour Environment Centre Inc v Minister for Planning & Anor (1994) 84 LGERA 324;
Edwards v Attorney General (2004) 60 NSWLR 667;
Franklins Ltd v Penrith City Council and Campbells Cash & Carry Pty Limited [1999] NSWCA 134;
GPT Re Ltd v Wollongong City Council (2006) 151 LGERA 116;
Jones v Metropolitan Meat Industry Board (1925) 37 CLR 252;
King v Bathurst Regional Council (2006) 150 LGERA 362;
MCC Energy Pty Ltd v Wyong Shire Council and Others (2006) 149 LGERA 59;
Mills v Meeking (1990) 169 CLR 214;
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24;
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323;
Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559;
North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23;
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355;
Save Our Street Inc v Settree and Another (2006) 149 LGERA 30;
Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532;
Swan Hill Corporation v Bradbury (1937) 56 CLR 746;
Town Planning Board v Society for the Protection of the Harbour Ltd [2004] 1 HKLRD 396;
Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797;
Williams v Melbourne Corporation (1933) 49 CLR 142 ;
Winn v Director-General of National Parks and Wildlife and Others…

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] NSWLEC 459
Decision Date: 17 August 2007

CaseChat Overview and Summary

In Castle Constructions Pty Ltd v North Sydney Council, the Land and Environment Court of New South Wales considered a challenge to the validity of a development control plan or certain provisions thereof. The applicant, Castle Constructions Pty Ltd, contended that the respondent, North Sydney Council, had no power to make amendments to the North Sydney Development Control Plan 2002, or that the amendments were invalid because they did not achieve the purpose of the North Sydney Local Environmental Plan 2001, were inconsistent with the local environmental plan, or were the same or substantially the same as provisions of the local environmental plan. The court found that certain provisions of the amended development control plan were invalid, including the height controls, massing provisions, and the building height map, as they were inconsistent with the local environmental plan and failed to achieve its purpose. The court also found that the height controls were based on an inapplicable provision of the local environmental plan, rendering them invalid. The court declared the invalid provisions and ordered the respondent to pay the applicant's costs.

Orders