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: Second Reading…
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- Case
- [2022] NSWLEC 14
- Decision Date
CaseChat Overview and Summary
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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