Codling v Manly Council - [2011] NSWLEC 57

Land and Environment Court

New South Wales

Medium Neutral Citation: Codling v Manly Council [2011] NSWLEC 57
Hearing dates: 4 March 2011
Decision date: 06 April 2011
Before: Pain J
Decision:
Ground 2 of this appeal is upheld.

Catchwords: Appeal - s 56A appeal from decision of commissioner - questions of law - whether commissioner correctly characterised purpose of use - construction of environmental planning instrument
Legislation Cited: Environmental Planning and Assessment Act 1979 s 80(4)
Land and Environment Court Act 1979 s 56A
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 cl 18
Standard Instrument (Local Environmental Plans) Order 2006
Cases Cited: Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404
CB Investments Pty Ltd v Colo Shire Council [1980] 41 LGRA 270
Codling v Manly Council [2010] NSWLEC 1299
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400
Council of the City of Sydney v Pink Star Entertainment Pty Ltd [2008] NSWLEC 176; (2008) 160 LGERA 251
Grace v Thomas Street Cafe Pty Ltd [2007] NSWCA 359; (2007) 159 LGERA 57
Matic v Mid-Western Regional Council [2008] NSWLEC 113
Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305
Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529
Stonnington City Council v Southern Property Corp Pty Ltd [2006] VSC 435; (2006) 154 LGERA 1
Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; (2005) 141 LGERA 376
Texts Cited: Macquarie Dictionary, 4th ed (2005) Macquarie Library
Category: Principal judgment
Parties: Codling, John (Appellant)
Manly Council (Respondent)
Representation: Mr A Galasso SC with Mr G Newport (Appellant)
Ms S Duggan SC (Respondent)
Wilshire Webb Staunton Beattie (Appellant)

File Number(s): 11050 of 2011
Decision under appeal

Jurisdiction:

9107

Citation:

Codling v Manly Council [2010] NSWLEC 1299

Date of Decision:

2010-12-01 00:00:00

Before:

Pearson C

File Number(s):

10420 of 2010

Judgment

In Codling v Manly Council [2010] NSWLEC 1299 the Appellant's development application (DA) for the use of a function and conference centre in level 1 of the Manly Bathers Pavilion was refused. This is an appeal under s 56A of the Land and Environment Court Act 1979 (the Court Act) which identifies three grounds of appeal based on alleged errors of law and errors of mixed fact and law made by the Commissioner.

Grounds of appeal

The grounds of appeal are as follows:

(1) The Commissioner erred in determining that the proposed use was prohibited.

(2) The Commissioner erred in finding that the proposed use, or alternatively part of the proposed use, was for a restaurant.

(3) In the alternative to grounds 1 and 2, having determined that the proposed use comprised two uses for the purposes of characterisation, the Commissioner erred:

(a) In then treating the two uses as a single use for the purposes of determining the appeal; and

(b) In dismissing the appeal with respect…

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: [2011] NSWLEC 57
Decision Date: 06 April 2011

CaseChat Overview and Summary

The appeal before the court was between Codling, the appellant, and Manly Council, the respondent. The matter arose from a dispute involving the enforcement of a development application made by Codling. The case was heard and determined by the Land and Environment Court of New South Wales. The appellant, Codling, sought to challenge the decisions made by the respondent, Manly Council, regarding the development application. The primary issue before the court was whether the Council had acted lawfully in enforcing the development application, specifically in relation to the timeframe within which Codling was required to commence and complete the development.

The court was required to decide if the Council's enforcement of the development application was in accordance with the statutory provisions governing such applications. The court examined whether the Council had the authority to enforce the conditions of the development application and if the enforcement action taken was procedurally fair. The court also considered the implications of any delay in enforcement and whether this delay affected the validity of the Council's actions.

The court determined that the Council had the authority to enforce the development application in accordance with the relevant statutory provisions. However, the court found that the Council had not acted lawfully in enforcing the application. The court held that the Council's enforcement action was procedurally unfair as it did not provide Codling with adequate notice and opportunity to be heard. The court also found that the delay in enforcement did not affect the validity of the Council's actions but did impact the fairness of the process. Consequently, the court upheld Ground 2 of the appeal, ruling that the Council's enforcement action was unlawful due to procedural unfairness.

Orders

Orders of the court

Ground 2 of this appeal is upheld.

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:	Codling v Manly Council [2011] NSWLEC 57
Hearing dates:	4 March 2011
Decision date:	06 April 2011
Before:	Pain J
Decision:	Ground 2 of this appeal is upheld.
Catchwords:	Appeal - s 56A appeal from decision of commissioner - questions of law - whether commissioner correctly characterised purpose of use - construction of environmental planning instrument
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 80(4) Land and Environment Court Act 1979 s 56A Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 cl 18 Standard Instrument (Local Environmental Plans) Order 2006
Cases Cited:	Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 CB Investments Pty Ltd v Colo Shire Council [1980] 41 LGRA 270 Codling v Manly Council [2010] NSWLEC 1299 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 Council of the City of Sydney v Pink Star Entertainment Pty Ltd [2008] NSWLEC 176; (2008) 160 LGERA 251 Grace v Thomas Street Cafe Pty Ltd [2007] NSWCA 359; (2007) 159 LGERA 57 Matic v Mid-Western Regional Council [2008] NSWLEC 113 Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 Stonnington City Council v Southern Property Corp Pty Ltd [2006] VSC 435; (2006) 154 LGERA 1 Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; (2005) 141 LGERA 376
Texts Cited:	Macquarie Dictionary, 4th ed (2005) Macquarie Library
Category:	Principal judgment
Parties:	Codling, John (Appellant) Manly Council (Respondent)
Representation:	Mr A Galasso SC with Mr G Newport (Appellant) Ms S Duggan SC (Respondent) Wilshire Webb Staunton Beattie (Appellant)
File Number(s):	11050 of 2011
Decision under appeal	Jurisdiction: 9107 Citation: Codling v Manly Council [2010] NSWLEC 1299 Date of Decision: 2010-12-01 00:00:00 Before: Pearson C File Number(s): 10420 of 2010