Centro Properties Limited v Warringah Council - [2003] NSWLEC 145

Reported Decision: (2003) 128 LGERA 17

Land and Environment Court

of New South Wales

CITATION: Centro Properties Limited v Warringah Council & Anor [2003] NSWLEC 145

PARTIES:
APPLICANT
Centro Properties Ltd
FIRST RESPONDENT
Warringah Council
SECOND RESPONDENT
Cornerstone Property Group Pty Ltd

FILE NUMBER(S): 40045 of 2003

CORAM: Pain J

KEY ISSUES:
Construction and Interpretation :- whether cl 12(3)(b) and cl 20(1) of the Warringah Local Environmental Plan 2000 are conditions precedent - whether cl 20 is a jurisdictional fact
Judicial review :- whether the material before Council adequately characterised the Desired Future Character Statement for the C9 Locality to enable a determination of whether the proposal is "consistent with" the Desired Future Character in determining to grant development consent - whether the conditions precedent in cl 12(3)(b) and cl 20(1) relating to a finding of consistency of the proposal with the desired future character were satisfied - whether the conclusion of consistency with the Desired Future Character was manifestly unreasonable - whether the Council failed to consider the requirement of consistency with the Desired Future Character - whether the Council failed to consider the economic impact in the locality as required by s 79C(1)(b)

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 34(1), s 79C
State Environmental Planning Policy No 1
Draft State Environmental Planning Policy No 66
Warringah Local Environment Plan 2000 cl 3, cl 6, cl 7, cl 10, cl 11, cl 12, cl 14, cl 18, cl 20, C9 Locality Statement

CASES CITED: Bruce v Cole (1998) 45 NSWLR 163;
Clifford v Wyong Shire Council (1996) 89 LGERA 240;
Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185;
Corporation of the City of Enfield v Development Assessment Commission and Anor (1999) 199 CLR 135;
Craig v South Australia (1995) 184 CLR 163;
Currey v Sutherland Shire Council (1998) 100 LGERA 365;
Dem Gillespies v Warringah Council [2002] NSWLEC 224;
ex parte Hebburn; re Kearsley Shire Council (1947) 47 SR (NSW) 416;
Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373;
Franklins Limited v Penrith City Council [1999] NSWCA 134;
Hill v Green (1999) 48 NSWLR 161;
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291;
Lakeside Plaza Pty Ltd v Legal and General Properties No 2 Ltd (1992) 76 LGRA 60;
Manly Council v Hortis (2001) 113 LGERA 321;
Minister for Immigration and Ethnic Affairs v Eshetu (1999) 162 ALR 577;
Plumb v Penrith City Council [2002] NSWLEC 223;
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355;
Re McJannet; ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620;
Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74;
Telstra Corporation Ltd v Hurstville City Council [2002] FCA 385;
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55;
Zhang v Canterbury City Council (2001)…

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: [2003] NSWLEC 145
Decision Date: 07/02/2003

CaseChat Overview and Summary

The applicant, Centro Properties Limited, sought a declaration that a development consent granted by the Warringah Council for the construction of a bulky goods retail outlet, shops, restaurants and associated parking on a piece of land was invalid and of no effect. The applicant also sought an order that the Council be restrained from acting upon the consent, costs and such other orders as the court thought fit. The applicant submitted that the Council wrongly assumed jurisdiction to grant the consent in circumstances where the condition precedent to the grant of consent, namely, the satisfaction of consistency with the desired future character (DFC) of the locality had not been fulfilled. Absent the fulfilment of the condition precedent, the Council had no power to grant the development consent. The applicant also submitted that the Council failed to take into consideration the economic impacts of the development in the locality in breach of the obligation imposed by s 79C of the Environmental Planning and Assessment Act. The applicant submitted that the consent was granted in breach of the Act, which breach was material, and is invalid. The Council submitted that the development application was valid and the Council had jurisdiction to determine the development application. Pain J held that the applicant had not succeeded in relation to its primary argument. The applicant's argument that cl 12(3)(b) and cl 20(1) were conditions precedent to the grant of development consent was accepted. The Court found that the Council's consideration of cl 12(3)(b) and cl 20 was within jurisdiction. The Court found that the applicant had not succeeded on argument 2. The Court found that the Council's consideration of economic impact in the locality was deficient in the context of this particular development application. The Court found that the circumstances of the case were distinguishable from the facts of Lakeside Plaza. The Court found that the issue of economic impact on the locality was never identified as a relevant one for the Council.

Orders