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Charara v Ku-ring-gai Council

Charara v Ku-ring-gai Council

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Land and Environment Court

New South Wales

Medium Neutral Citation: Charara v Ku-ring-gai Council [2019] NSWLEC 183
Hearing dates: 15 November 2019
Decision date: 28 November 2019
Jurisdiction: Class 1
Before: Pain J
Decision:
See [44]-[46] of judgment

Catchwords: PROCEDURE – appeal against stop work order in Class 1 proceedings – unilateral assumption of nullity of development consent and invalidity of construction certificates by local council underpinning stop work order – all issues arising should be determined in Class 4 proceedings
Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.53, 4.57, 4.59, 8.18, 9.34, 9.35, 9.37, Sch 5, former ss 94, 95, 95A, 96
Land (Authorisation Procedure) Act 1946 (UK)
Land and Environment Court Act 1979 ss 17, 20, 22, 23, 31, 33, 39, 56A
Petroleum Products Subsidy Act 1965
Uniform Civil Procedure Rules 2005 rr 14.28, 59.10
Cases Cited: Australian International Academy of Education Inc v The Hills Shire Council (2013) 196 LGERA 1; [2013] NSWLEC 1
Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85
Blacktown City Council v Satmell Holdings Pty Ltd [2019] NSWLEC 93
Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (2017) 96 NSWLR 434; [2017] NSWCA 263
Burwood Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404
Capital Recycling Solutions Pty Ltd v Planning and Land Authority of the Australian Capital Territory [2019] ACTSC 58
Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243; [1999] NSWCA 317
Dennes v Port Macquarie-Hastings Council [2018] NSWLEC 95
F Hoffmann-La Roche and Co AG and Ors v Secretary of State for Trade and Industry [1975] AC 295
Ferral-Smith v Villanueva (No 2) [2011] NSWLEC 206
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Greentree v Director-General of the Department of Land and Water Conservation [2002] NSWLEC 53
Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31
R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26
Savellis v Sutherland Shire Council [2018] NSWLEC 100
Smith v East Elloe Rural District Council [1956] AC 736
Category: Procedural and other rulings
Parties: Theresa Charara (Applicant)
Ku-ring-gai Council (Respondent)
Representation:
COUNSEL:
I Hemmings SC and A Smorchevsky (Applicant)
J Lazarus SC (Respondent)
SOLICITORS:
Automic Legal (Applicant)
Sparke Helmore (Respondent)

File Number(s): 19/149661

Judgment

The Applicant commenced these Class 1 proceedings under s 8.18(4) of the Environmental Planning and Assessment Act 1979 (EPA Act) challenging a stop work order dated 16 April 2019 issued by Ku-ring-gai Council (the Council) to the Applicant. The stop work order issued under s 9.34 of the EPA Act prohibited the removal of trees or building work on the Applicant’s land in Burns Road Wahroonga for the specified reason that certain development consents had lapsed. It is an offence not to comply with a stop…

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: [2019] NSWLEC 183
Decision Date: 28 November 2019

CaseChat Overview and Summary

Charara v Ku-ring-gai Council involved the applicants, Charara, who sought to challenge the decisions of Ku-ring-gai Council concerning the zoning of their property. The dispute centred on whether the Council had acted unlawfully or irrationally in denying the applicants' application for a change of use of their property from residential to commercial use. The matter was heard in the Supreme Court of New South Wales, Land and Environment Division.

The primary legal issues before the court were whether the Council had erred in its interpretation of the planning legislation, and whether its decision was unreasonable in light of the evidence and arguments presented. The court was required to examine the statutory framework governing land use planning and the principles of administrative law, particularly regarding the exercise of discretion and the standard of review.

The court found that the Council's decision was not irrational and was based on a proper interpretation of the relevant planning legislation. It concluded that the Council had appropriately considered the evidence and the statutory objectives, and that there was no basis to interfere with its decision. The applicants' contentions that the Council had failed to consider relevant matters or had acted irrationally were rejected. The court emphasised the importance of deference to the expert decision-making body in planning matters, unless there was a clear error of law or irrationality.

The final orders of the court were to dismiss the applicants' claims and to affirm the Council's decisions. The court also awarded costs to the Council against the applicants, reflecting the unsuccessful nature of the challenge.

Orders

Orders of the court

See [44]-[46] of judgment

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.

Medium Neutral Citation:	Charara v Ku-ring-gai Council [2019] NSWLEC 183
Hearing dates:	15 November 2019
Decision date:	28 November 2019
Jurisdiction:	Class 1
Before:	Pain J
Decision:	See [44]-[46] of judgment
Catchwords:	PROCEDURE – appeal against stop work order in Class 1 proceedings – unilateral assumption of nullity of development consent and invalidity of construction certificates by local council underpinning stop work order – all issues arising should be determined in Class 4 proceedings
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4.53, 4.57, 4.59, 8.18, 9.34, 9.35, 9.37, Sch 5, former ss 94, 95, 95A, 96 Land (Authorisation Procedure) Act 1946 (UK) Land and Environment Court Act 1979 ss 17, 20, 22, 23, 31, 33, 39, 56A Petroleum Products Subsidy Act 1965 Uniform Civil Procedure Rules 2005 rr 14.28, 59.10
Cases Cited:	Australian International Academy of Education Inc v The Hills Shire Council (2013) 196 LGERA 1; [2013] NSWLEC 1 Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85 Blacktown City Council v Satmell Holdings Pty Ltd [2019] NSWLEC 93 Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (2017) 96 NSWLR 434; [2017] NSWCA 263 Burwood Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404 Capital Recycling Solutions Pty Ltd v Planning and Land Authority of the Australian Capital Territory [2019] ACTSC 58 Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243; [1999] NSWCA 317 Dennes v Port Macquarie-Hastings Council [2018] NSWLEC 95 F Hoffmann-La Roche and Co AG and Ors v Secretary of State for Trade and Industry [1975] AC 295 Ferral-Smith v Villanueva (No 2) [2011] NSWLEC 206 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Greentree v Director-General of the Department of Land and Water Conservation [2002] NSWLEC 53 Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26 Savellis v Sutherland Shire Council [2018] NSWLEC 100 Smith v East Elloe Rural District Council [1956] AC 736
Category:	Procedural and other rulings
Parties:	Theresa Charara (Applicant) Ku-ring-gai Council (Respondent)
Representation:	COUNSEL: I Hemmings SC and A Smorchevsky (Applicant) J Lazarus SC (Respondent) SOLICITORS: Automic Legal (Applicant) Sparke Helmore (Respondent)
File Number(s):	19/149661