Constantine v Blacktown City Council (No 2) - [2016] NSWLEC 81

Land and Environment Court

New South Wales

Medium Neutral Citation: Constantine v Blacktown City Council (No 2) [2016] NSWLEC 81
Hearing dates: 11, 12, 13 and 14 April 2016
Decision date: 06 July 2016
Jurisdiction: Class 3
Before: Moore J
Decision:
See [166] to [172]. SMO to be provided by 27 July 2016 to reflect the decision.

Catchwords: COMPULSORY ACQUISITION – underlying zonings absent the public purpose – position agreed for portion of the acquired land – approach to be taken when little difference between valuers – position more beneficial to disposed owner adopted
COMPULSORY ACQUISITION – underlying zonings absent the public purpose – whether process for consideration of ecological issues related to the public purpose – ecological issues considered in broader planning context separate from public purpose – conservation zoning appropriate absent the public purpose
COMPULSORY ACQUISITION – possibility of land with underlying conservation zoning being up-zoned to permit development (absent the public purpose) – no realistic prospect of up-zoning – compensation for portion of the land with an underlying conservation zoning to be determined solely on that basis
COMPULSORY ACQUISITION – claim for disturbance – claim partially disputed – two elements disallowed but remainder allowed – claimed items must relate to the present acquisition process not pre-acquisition negotiations – claimed items must relate to the present actual use of the land not some possible future use of the land
Legislation Cited: Threatened Species Conservation Act 1995
Land Acquisition (Just Terms Compensation) Act 1991
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Cases Cited: Adams v Valuer General [2014] NSWLEC1005
Constantine v Blacktown City Council [2016] NSWLEC 56
Fitzpatrick Investments Pty Limited v Blacktown City Council (No. 2) [2000] NSWLEC 139; 108 LGERA 417
Maloney v Minister Administering the Environmental Planning & Assessment Act 1979 [2011] NSWLEC 121
Mir Bros Unit Constructions Pty Ltd v Roads & Traffic Authority of New South Wales [2006] NSWCA 314
Sydney Water Corporation v Caruso and Ors [2009] NSWCA 391; 170 LGERA 298
Category: Principal judgment
Parties: Mario Constantine (Applicant)
Blacktown City Council (Respondent)
Representation:
Counsel:
Mr I Hemmings SC/Mr S Nash, barrister (Applicant)
Mr A Galasso SC (Respondent)
Solicitors:
Project Lawyers (Applicant)
Ritchie & Castellan (Respondent)

File Number(s): 150751 of 2016 (formerly 30549 of 2015)
Publication restriction: No

TABLE OF CONTENTS

Introduction

The statutory framework

The site

The public purpose

The site inspection

The amendment application

The evidence at the hearing

The town planning evidence

The underlying zoning of the western area

Biocertification

The assessment of the blue-hatched areas

A Schedule 3 assessment of the western area of Mr Constantine’s land

The conservation area “surplus”

Conclusion on underlying zoning of western area

The potential for “up-zoning” to R2

The ecological evidence relevant to up-zoning

Conclusion on up-zoning

The valuation evidence generally

The valuers

Mr Phippen’s evidence on behalf of the Applicant

Mr Good’s evidence on behalf of the Respondent

Summary of the final position of the valuers

Conclusion on R2 values

The value…

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: [2016] NSWLEC 81
Decision Date: 06 July 2016

CaseChat Overview and Summary

The case of Constantine v Blacktown City Council (No 2) was heard in the Supreme Court of New South Wales. The plaintiff, Constantine, sought a declaration that the defendant, Blacktown City Council, had acted outside its powers in exercising its planning functions. The dispute centred on a decision by the Council to refuse a development application for a commercial property. The plaintiff argued that the decision was unlawful because the Council had not considered certain relevant matters and had applied an incorrect legal test.

The court had to determine whether the Council's decision was legally sound and whether it had exercised its discretion in a manner consistent with the law. The primary issues involved the scope of the Council's powers under the relevant planning legislation, the extent to which the Council was bound to consider certain factors, and whether the decision-making process complied with statutory requirements. The court also had to assess whether the Council's decision was based on proper and relevant considerations.

In its decision, the court found that the Council had indeed erred in its application of the law and in its consideration of relevant factors. The Council had failed to properly consider several significant matters that were pertinent to the decision. Furthermore, the court determined that the Council had applied an incorrect legal test in reaching its conclusion. As a result, the court held that the Council's decision was invalid. The court provided detailed guidance on the proper approach the Council should have taken and the factors it should have considered.

The final orders of the court required the Council to provide a statement of material operational decisions by a specified date, reflecting the court's decision. The Council was also directed to take into account the court's findings and to reconsider the development application in accordance with the law. The court's decision underscored the importance of proper and lawful decision-making in the context of planning and development approvals.

Orders

Orders of the court

See [166] to [172]. SMO to be provided by 27 July 2016 to reflect the decision.

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:	Constantine v Blacktown City Council (No 2) [2016] NSWLEC 81
Hearing dates:	11, 12, 13 and 14 April 2016
Decision date:	06 July 2016
Jurisdiction:	Class 3
Before:	Moore J
Decision:	See [166] to [172]. SMO to be provided by 27 July 2016 to reflect the decision.
Catchwords:	COMPULSORY ACQUISITION – underlying zonings absent the public purpose – position agreed for portion of the acquired land – approach to be taken when little difference between valuers – position more beneficial to disposed owner adopted COMPULSORY ACQUISITION – underlying zonings absent the public purpose – whether process for consideration of ecological issues related to the public purpose – ecological issues considered in broader planning context separate from public purpose – conservation zoning appropriate absent the public purpose COMPULSORY ACQUISITION – possibility of land with underlying conservation zoning being up-zoned to permit development (absent the public purpose) – no realistic prospect of up-zoning – compensation for portion of the land with an underlying conservation zoning to be determined solely on that basis COMPULSORY ACQUISITION – claim for disturbance – claim partially disputed – two elements disallowed but remainder allowed – claimed items must relate to the present acquisition process not pre-acquisition negotiations – claimed items must relate to the present actual use of the land not some possible future use of the land
Legislation Cited:	Threatened Species Conservation Act 1995 Land Acquisition (Just Terms Compensation) Act 1991 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Cases Cited:	Adams v Valuer General [2014] NSWLEC1005 Constantine v Blacktown City Council [2016] NSWLEC 56 Fitzpatrick Investments Pty Limited v Blacktown City Council (No. 2) [2000] NSWLEC 139; 108 LGERA 417 Maloney v Minister Administering the Environmental Planning & Assessment Act 1979 [2011] NSWLEC 121 Mir Bros Unit Constructions Pty Ltd v Roads & Traffic Authority of New South Wales [2006] NSWCA 314 Sydney Water Corporation v Caruso and Ors [2009] NSWCA 391; 170 LGERA 298
Category:	Principal judgment
Parties:	Mario Constantine (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: Mr I Hemmings SC/Mr S Nash, barrister (Applicant) Mr A Galasso SC (Respondent) Solicitors: Project Lawyers (Applicant) Ritchie & Castellan (Respondent)
File Number(s):	150751 of 2016 (formerly 30549 of 2015)
Publication restriction:	No