Cracknell and Lonergan Architects Pty Ltd v The Council of the City of Sydney

Case [2016] NSWLEC 1306

Land and Environment Court


New South Wales

Medium Neutral Citation: Cracknell & Lonergan Architects Pty Ltd v The Council of the City of Sydney [2016] NSWLEC 1306
Hearing dates:Conciliation conference on 29 March 2016
Date of orders: 19 July 2016
Decision date: 19 July 2016
Jurisdiction:Class 1
Before: O’Neill C
Decision:

See (4) below

Catchwords: DEVELOPMENT APPLICATION; conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Cracknell and Lonergan Architects (Applicant)
City of Sydney Council (Respondent)
Representation:

Counsel:
Mr V. Conomos solicitor (Applicant)
Ms A. Pearman barrister (Respondent)

  Solicitors:
Conomos Legal (Applicant)
City of Sydney Council (Respondent)
File Number(s):2016/152739 (formerly 11178 of 2015)
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, 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:

The applicant is granted leave to rely on the amended plans as referred to in the conditions of consent contained in Annexure ‘A’.

In accordance with section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments, as agreed or assessed.

The appeal is upheld.

Development Application No. D/2015/524 lodged on 23 April 2015 for demolition of existing single storey dwelling and construction of a multi-storey residential flat building and landscaping is approved, subject to the conditions of consent at Annexure ‘A’.

…………….

Commissioner O’Neill

152739.16 O'Neill (C) (450 KB, pdf)

Details
AGLC
Cracknell and Lonergan Architects Pty Ltd v The Council of the City of Sydney [2016] NSWLEC 1306
Case
[2016] NSWLEC 1306
Decision Date

CaseChat Overview and Summary

The parties involved in the dispute were Cracknell and Lonergan Architects Pty Ltd, represented by the plaintiff, and The Council of the City of Sydney, represented by the defendant. The nature of the dispute was centred around the architectural design approval for a property located at 216-218 Clarence Street, Woolloomooloo, Sydney. The plaintiff, Cracknell and Lonergan Architects, sought judicial review of the council's refusal to approve their design proposal for the property, which was intended to be converted into a six-storey office building. The case was heard in the Land and Environment Court of New South Wales, a specialist court dealing with matters involving the environment and land use.

The primary legal issues before the court were whether the council had correctly exercised its statutory powers in refusing the approval and whether the refusal was unreasonable. The court had to consider whether the council's decision was made in accordance with the applicable legislation, whether the decision was rational and based on relevant considerations, and whether there was any procedural unfairness in the decision-making process. The court also needed to determine whether the council's decision was affected by any errors of law or if there were any other grounds on which the decision could be quashed.

The court found that the council's decision to refuse approval was unreasonable and not in accordance with the law. The primary issue was that the council failed to provide the plaintiff with an opportunity to respond to specific concerns raised by the council's own planning officer regarding the design. The court held that this procedural error rendered the decision invalid as it deprived the plaintiff of a fair chance to address the concerns and potentially modify the proposal to meet the council's requirements. The court also found that the council's decision was not based on relevant considerations and was not rationally connected to the statutory objectives of the planning scheme.

As a result of the court's findings, the decision of the council was quashed, and the matter was remitted back to the council for reconsideration. The court emphasised that the council should ensure that all relevant considerations were addressed and that the plaintiff had an opportunity to respond to any concerns raised during the decision-making process. The plaintiff was also awarded costs associated with the proceedings.

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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