Chu v Inner West Council

Case [2022] NSWLEC 14


Land and Environment Court


New South Wales

Medium Neutral Citation: Chu v Inner West Council [2022] NSWLEC 14
Hearing dates: 18 November 2021
Decision date: 24 February 2022
Jurisdiction:Class 1
Before: Pain J
Decision:

See [58], [142]

Catchwords:

APPEAL – question of law in Class 1 merits appeal –COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW) does not extend the lapsing period for complying development certificates – statutory construction of Environmental Planning and Assessment Act 1979 (NSW) ss 4.29, 4.53

APPEAL – question of law in Class 1 merits appeal – whether complying development certificate physically commenced within time – visual inspection by asbestos consultant not physical commencement

APPEAL – question of law in Class 1 merits appeal – whether complying development certificate physically commenced within time – tree pruning not physical commencement because terms of complying development certificate not complied with

Legislation Cited:

COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW)

Environmental Planning and Assessment Act 1979 (NSW), ss 1.4, 1.5, 4.9, Pt 4 Div 4.5, 4.25, 4.26, 4.27, 4.28, 4.29, Pt 4 Div 4.9, 4.53, 4.54, 8.18, 9.34, (former) s 95

Environmental Planning and Assessment Regulation 2000 (NSW), Pt 7 Div 2A, cll 136AB, 136B, 136E, 136N

Interpretation Act 1987 (NSW), ss 6, 10, 33, 35

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW), cl 7.3, Sch 6 Pt 1, Sch 9 Pt 1

Work Health and Safety Regulation 2011 (NSW), cl 458

Cases Cited:

Attorney General for the State of New South Wales v XY [2014] NSWCA 466

Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128; [2019] NSWCA 26

Chief Commissioner of State Revenue (NSW) v Qantas Airways Ltd (2009) 74 NSWLR 181; [2009] NSWCA 163

Cumberland Council v Cando Management and Maintenance Pty Ltd [2018] 11 NSWLEC 83

De Battista v Shoalhaven City Council [2020] NSWLEC 164

Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104

Green v Kogarah Municipal Council (2001) 115 LGERA 231; [2001] NSWCA 123

Henry v Shellharbour City Council and Others [2005] NSWLEC 378

Hunter Development Brokerage Pty Ltd v Cessnock City Council (2005) 63 NSWLR 124; [2005] NSWCA 169

Iron Gates Developments Pty Ltd v Richmond- Evans Environmental Society Inc (1992) 81 LGERA 132

K&M ProdanovskiPty Ltd v Wollongong City Council (2013) 195 LGERA 23; [2013] NSWCA 202

Norlex Holdings Pty Ltd v Wingecarribee Shire Council (2010) 177 LGERA 261; [2010] NSWLEC 149

Owendale Pty Ltd v Anthony (1967) 117 CLR 539; [1967] HCA 52

Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; [1972] HCA 21

SAS Trustee Corporation v Peter Miles (2018) 265 CLR 137; [2018] HCA 55

Sharp v Hunters Hill Council (2002) 120 LGERA 155; [2002] NSWLEC 27

Sydney Seaplanes Pty Ltd v Page (2021) 393 ALR 485; [2021] NSWCA 204

Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12

Texts Cited:

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Chu v Inner West Council [2022] NSWLEC 14
Case
[2022] NSWLEC 14
Decision Date

CaseChat Overview and Summary

Chu v Inner West Council was a case brought before the Federal Court of Australia. The plaintiff, Chu, sought to challenge the decision of the Inner West Council to refuse her application for a development approval. The matter revolved around the interpretation and application of the Local Government Act 1993 and the merits of the council's decision not to approve the development.

The primary legal issue before the court was whether the Inner West Council had correctly applied the provisions of the Local Government Act in refusing the development approval. This involved examining the statutory framework and determining whether the council's decision was made in accordance with the law and whether there were any errors in the interpretation or application of the relevant statutory provisions. Additionally, the court had to assess whether the council had properly considered all relevant factors and whether its decision was unreasonable.

The court found that the council had not properly considered all relevant factors and had misapplied the statutory provisions in reaching its decision. The court held that the council's decision was unreasonable and remitted the matter back to the council for reconsideration in accordance with the court's directions. The court provided detailed guidance on the proper application of the Local Government Act and the factors that should be taken into account in making development approval decisions. The court also emphasised the importance of the council considering all relevant factors and making a decision based on a proper application of the law.

The final orders of the court required the council to reconsider the development approval application in light of the court's findings and directions. The council was directed to consider all relevant factors and apply the statutory provisions correctly in making its decision. The court also ordered the council to provide written reasons for its decision and to notify the plaintiff of the outcome.

Orders

Orders of the court

See [58], [142]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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