Chisholm v Pittwater Council - [2001] NSWCA 104

CITATION: Chisholm v Pittwater Council & Anor [2001] NSWCA 104

FILE NUMBER(S): CA 40550/00

HEARING DATE(S): 11/04/01

JUDGMENT DATE:
24 April 2001

PARTIES :

Samuel Chisholm v Pittwater Council & Willeroon Pty Limited

JUDGMENT OF: Meagher JA at 1; Powell JA at 2; Ipp AJA at 3

LOWER COURT JURISDICTION : Land & Environment Court

LOWER COURT
FILE NUMBER(S) : LEC 40046/00

LOWER COURT
JUDICIAL OFFICER : Talbot J

COUNSEL: N Hemmings QC (Appellant)
R Lancaster (First Respondent)
D F Jackson QC/A E Glasso (Second Respondent)

SOLICITORS: Allen Allen & Hemsley (Appellant)
Mallesons Stephen Jacques (First Respondent)
Deacons (Second Respondent)

CATCHWORDS: BUILDING CONTROL & TOWN PLANNING - consent and approval of councils - development application - property within conservation area - heritage significance of property - clause 32 of Local Environmental Plan - whether council properly considered clause 32 and the relevant conservation plan - elements of conservation plan - council found to have considered all relevant matters under clause 32 LEP - approval of development application upheld. D

LEGISLATION CITED: Acts Interpretation Act 1987
Environmental Planning and Assessment Act 1979

CASES CITED:
Parramatta City Council v Hale (1982) 47 LGRA 319

DECISION: Appeal dismissed with costs.

CA 40550/00

LEC 40046/00

MEAGHER JA

POWELL JA

IPP AJA

Tuesday 24 April 2001

SAMUEL CHISHOLM v PITTWATER COUNCIL and WILLEROON PTY LIMITED

The appellant is the owner of No 36 Ocean Road, Palm Beach. The property at No 35 Ocean Road is known as “Willeroon” and is owned by the second respondent. Both these properties fall within the jurisdiction of Pittwater Council, (the Council) the first respondent. The Ocean Road, Palm Beach area is regarded as an important heritage area and since 1999 has been proclaimed as a heritage conservation area, known as the “Ocean Road Conservation Area”. The Pittwater Local Environmental Plan was amended in June 1999 to include the new conservation area. Specifically, clause 32 of the LEP was amended to impose more onerous requirements for granting development consent. Importantly however, during these changes to the LEP “Willeroon” was not listed as a separate heritage item.

In 1998 the second respondent lodged a development application seeking consent to demolish Willeroon and construct a three storey dwelling. The Council approved this development application. The appellant challenged the Council’s decision in the Land and Environment Court before Talbot J but was unsuccessful. It is from that decision that the appellant now appeals, arguing the following;

(i) the Council failed to comply with the LEP, specifically by failing to apply the amended clause 32.

(ii) the Council failed to take relevant matters into account and took into account irrelevant matters.

(iii) the Council failed to afford the appellant procedural fairness.

(iv) the Council was manifestly unreasonable.

At hearing, in effect only the first point was argued.

HELD dismissing the appeal with costs
(Per Ipp AJA, Meagher JA and Powell JA agreeing)

(i) There is evidence which demonstrates conclusively that the Council was expressly informed of the June 1999 amendments to clause 32 of…

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.

Keep reading for free

Create a free CaseChat account to read Chisholm v Pittwater Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] NSWCA 104
Decision Date: 24 April 2001

CaseChat Overview and Summary

The appeal concerned a development application made by Chisholm (the appellant) to Pittwater Council (the respondent) for development on a property within a conservation area. The property possessed heritage significance, and the development application was subject to clause 32 of the Local Environmental Plan (LEP). The central dispute revolved around whether the Council had properly considered clause 32 of the LEP and the relevant conservation plan in its assessment of the development application.

The court was required to determine whether the Council had given due consideration to all the elements of the conservation plan as mandated by clause 32 of the LEP. Specifically, the court had to assess if the Council's decision-making process adequately incorporated the heritage significance of the property and the requirements of the conservation plan when approving the development application.

The Court found that the Council had indeed considered all relevant matters under clause 32 of the LEP. The reasoning focused on the Council's assessment of the development application in light of the conservation plan's objectives and the heritage significance of the site. The Court concluded that the Council's approval of the development application was lawful and properly made.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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:	Chisholm v Pittwater Council & Anor [2001] NSWCA 104
FILE NUMBER(S):	CA 40550/00
HEARING DATE(S):	11/04/01
JUDGMENT DATE:	24 April 2001
PARTIES :	Samuel Chisholm v Pittwater Council & Willeroon Pty Limited
JUDGMENT OF:	Meagher JA at 1; Powell JA at 2; Ipp AJA at 3

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	LEC 40046/00
LOWER COURT JUDICIAL OFFICER :	Talbot J

COUNSEL:	N Hemmings QC (Appellant) R Lancaster (First Respondent) D F Jackson QC/A E Glasso (Second Respondent)
SOLICITORS:	Allen Allen & Hemsley (Appellant) Mallesons Stephen Jacques (First Respondent) Deacons (Second Respondent)
CATCHWORDS:	BUILDING CONTROL & TOWN PLANNING - consent and approval of councils - development application - property within conservation area - heritage significance of property - clause 32 of Local Environmental Plan - whether council properly considered clause 32 and the relevant conservation plan - elements of conservation plan - council found to have considered all relevant matters under clause 32 LEP - approval of development application upheld. D
LEGISLATION CITED:	Acts Interpretation Act 1987 Environmental Planning and Assessment Act 1979
CASES CITED:	Parramatta City Council v Hale (1982) 47 LGRA 319
DECISION:	Appeal dismissed with costs.