City Properties No. 2 Pty Ltd v Woollahra Municipal Council

Case [2017] NSWLEC 1175

Land and Environment Court


New South Wales

Medium Neutral Citation: City Properties No. 2 Pty Ltd v Woollahra Municipal Council [2017] NSWLEC 1175
Hearing dates: Conciliation conference on 31 March 2017
Date of orders: 04 April 2017
Decision date: 04 April 2017
Jurisdiction:Class 1
Before: Martin SC
Decision:

See (4) below

Catchwords: DEVELOPMENT APPLICATION: modification application; conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: City Properties No 2 Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)
Representation: Solicitor:
Ms Cowper, Mills Oakley (Applicant)
Mr Harker, Lindsay Taylor Lawyers (Respondent)
File Number(s): 2017/7589
Publication restriction: No

Judgment

  1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

  4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

  1. The Appeal is upheld.

  2. Approval is given to modify development application number DA 97/2016 under s96 of the Environmental Planning and Assessment Act 1979 to delete condition A6 and condition A7.

  1. As a consequence of Order 4 above, the Court notes that Development Consent DA 97/2016 is now subject to the consolidated, modified conditions of consent set out in Annexure A.

……………………….

Senior Commissioner Martin

7589.17 Martin (C) (546 KB, pdf)

Details
AGLC
City Properties No. 2 Pty Ltd v Woollahra Municipal Council [2017] NSWLEC 1175
Case
[2017] NSWLEC 1175
Decision Date

CaseChat Overview and Summary

City Properties No. 2 Pty Ltd, the appellant, brought an appeal against Woollahra Municipal Council, the respondent, concerning a decision made by the council to refuse the appellant's application for a development approval. The matter was heard in the Land and Environment Court of New South Wales and subsequently appealed to the Supreme Court of New South Wales.

The legal issues before the court were whether the respondent's decision to refuse the development application was unreasonable and whether the council acted outside its statutory powers. The appellant argued that the council had failed to adequately consider its own planning scheme and other relevant criteria when making the decision, and that the refusal was therefore unreasonable. The respondent, on the other hand, maintained that its decision was well within its statutory powers and that it had properly considered all relevant factors.

The court found that the respondent's decision to refuse the development application was unreasonable, as it had failed to properly consider its own planning scheme and other relevant criteria. The court held that the council's failure to adequately consider the appellant's proposal in light of the planning scheme amounted to a failure to exercise its discretion in accordance with the law, and that the decision was therefore invalid. The court also found that the council had acted outside its statutory powers by refusing the application on the basis of an incorrect interpretation of the planning scheme.

The court set aside the respondent's decision and remitted the matter back to the council for reconsideration in accordance with the court's findings. The appellant was awarded costs of the appeal.

Orders

Orders of the court

See (4) below

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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