Csillag v Woollahra Council - [2011] NSWLEC 17

Land and Environment Court

New South Wales

Medium Neutral Citation: Csillag v Woollahra Council [2011] NSWLEC 17
Hearing dates: 11/5/2010, 12/5/2010
Decision date: 21 February 2011
Before: Craig J
Decision:
The orders that I make are therefore as follows:
1. In accordance with s 25B(1)(a) of the Land and Environment Court Act 1979 (the Court Act), the whole of development consent no. 256/2008/1 granted by the first respondent on 6 July 2009 is suspended until further order made in accordance with s 25C of the Court Act.
2. Direct the parties to bring in short minutes of order to give effect to the terms of this judgment, including:
i. the requirement for re-notification and advertising of development application no. 256/2008/1 in accordance with Woollahra Development Control Plan for Advertising and Notification of Development Applications and Applications to Modify Development Consents;
ii. the further consideration of that application by the first respondent in accordance with s 103 of the Environmental Planning and Assessment Act 1979 following receipt of any submissions received in consequence of notification and advertisement of the development application; and
iii. the further listing of the matter before the Court in order to consider the making of an order under s 25C of the Court Act.3. Stand over the proceedings to 9:30 am on Friday 25 February 2011 for the purpose of considering the short minutes of order prepared in accordance with order 2 and, if appropriate, to make orders in accordance with those short minutes.
4. Order that the second respondent pay one quarter of the applicants' costs of the proceedings to date.
5. Exhibits may be returned.

Catchwords:
JUDICIAL REVIEW:- notification and advertisement of development application - alterations and additions to a penthouse apartment in an existing building - correct identification of land to which development application related - development site with dual street frontages and assigned addresses - multiple separate buildings located on development site - sufficiency of address identifying only an apartment number and one of the recorded street addresses - Woollahra Development Control Plan for Advertising and Notification of Development Applications and Applications to Modify Development Consents - purposive construction of the DCP - material accompanying notification letters sufficient to identify location of proposed development - single street address and apartment number insufficient to meet the requirements for advertising - development consent suspended under s 25B of the Land and Environment Court Act 1979
COSTS:- validity of development consent - one of two grounds of invalidity abandoned during the course of the hearing - significant evidence and preparation directed to the abandoned ground - Uniform Civil Procedure Rule 42.1 - successful applicant entitled to 25 per cent of costs
Legislation Cited: Woollahra Development Control Plan for Advertising and Notification of Development Applications and Applications to Modify Development Consents
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Woollahra Local Environmental Plan 1995
Cases Cited: Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602
Kindimindi…

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 17
Decision Date: 21 February 2011

CaseChat Overview and Summary

The case of Csillag v Woollahra Council was heard in the Land and Environment Court of New South Wales. The applicant, Csillag, sought to challenge a development consent granted by the Woollahra Council to the respondent. The dispute centred on the validity of the development consent issued for a proposed development on a property located in Darling Point. The applicant argued that the consent was improperly granted, and sought its suspension and the re-assessment of the development application.

The court was required to determine several key legal issues. Firstly, whether the development consent granted by the Council was legally valid and properly issued. Secondly, whether the applicant had standing to bring the proceedings before the Court. Thirdly, if the consent was found to be invalid, what orders should the Court make to address the situation. The court also needed to consider whether the Council had complied with relevant statutory requirements and whether the applicant's concerns were valid and warranted judicial intervention.

In delivering the judgment, the court found that the development consent was indeed invalid due to procedural irregularities in its granting. The court held that the Woollahra Council had failed to properly notify and advertise the development application as required by the Woollahra Development Control Plan. Furthermore, the court found that the applicant had standing to bring the proceedings, as they were an affected party. Consequently, the court suspended the development consent and directed the Council to re-notify and advertise the application. The court also mandated that the Council reconsider the application following receipt of any submissions and directed the matter to be listed again for further consideration.

In its orders, the court suspended the development consent until further order, directed the parties to prepare short minutes of order, and stood over the proceedings to allow for the preparation of these minutes and any further necessary orders. The court also ordered the Council to pay a quarter of the applicant's costs of the proceedings. These orders ensure that the invalid consent is rectified and that the development application is properly reassessed in accordance with the law.

Orders

Orders of the court

The orders that I make are therefore as follows:

1. In accordance with s 25B(1)(a) of the Land and Environment Court Act 1979 (the Court Act), the whole of development consent no. 256/2008/1 granted by the first respondent on 6 July 2009 is suspended until further order made in accordance with s 25C of the Court Act.

2. Direct the parties to bring in short minutes of order to give effect to the terms of this judgment, including:

i. the requirement for re-notification and advertising of development application no. 256/2008/1 in accordance with Woollahra Development Control Plan for Advertising and Notification of Development Applications and Applications to Modify Development Consents;

ii. the further consideration of that application by the first respondent in accordance with s 103 of the Environmental Planning and Assessment Act 1979 following receipt of any submissions received in consequence of notification and advertisement of the development application; and

iii. the further listing of the matter before the Court in order to consider the making of an order under s 25C of the Court Act.3. Stand over the proceedings to 9:30 am on Friday 25 February 2011 for the purpose of considering the short minutes of order prepared in accordance with order 2 and, if appropriate, to make orders in accordance with those short minutes.

4. Order that the second respondent pay one quarter of the applicants' costs of the proceedings to date.

5. Exhibits may be returned.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Csillag v Woollahra Council [2011] NSWLEC 17
Hearing dates:	11/5/2010, 12/5/2010
Decision date:	21 February 2011
Before:	Craig J
Decision:	The orders that I make are therefore as follows: 1. In accordance with s 25B(1)(a) of the Land and Environment Court Act 1979 (the Court Act), the whole of development consent no. 256/2008/1 granted by the first respondent on 6 July 2009 is suspended until further order made in accordance with s 25C of the Court Act. 2. Direct the parties to bring in short minutes of order to give effect to the terms of this judgment, including: i. the requirement for re-notification and advertising of development application no. 256/2008/1 in accordance with Woollahra Development Control Plan for Advertising and Notification of Development Applications and Applications to Modify Development Consents; ii. the further consideration of that application by the first respondent in accordance with s 103 of the Environmental Planning and Assessment Act 1979 following receipt of any submissions received in consequence of notification and advertisement of the development application; and iii. the further listing of the matter before the Court in order to consider the making of an order under s 25C of the Court Act.3. Stand over the proceedings to 9:30 am on Friday 25 February 2011 for the purpose of considering the short minutes of order prepared in accordance with order 2 and, if appropriate, to make orders in accordance with those short minutes. 4. Order that the second respondent pay one quarter of the applicants' costs of the proceedings to date. 5. Exhibits may be returned.
Catchwords:	JUDICIAL REVIEW:- notification and advertisement of development application - alterations and additions to a penthouse apartment in an existing building - correct identification of land to which development application related - development site with dual street frontages and assigned addresses - multiple separate buildings located on development site - sufficiency of address identifying only an apartment number and one of the recorded street addresses - Woollahra Development Control Plan for Advertising and Notification of Development Applications and Applications to Modify Development Consents - purposive construction of the DCP - material accompanying notification letters sufficient to identify location of proposed development - single street address and apartment number insufficient to meet the requirements for advertising - development consent suspended under s 25B of the Land and Environment Court Act 1979 COSTS:- validity of development consent - one of two grounds of invalidity abandoned during the course of the hearing - significant evidence and preparation directed to the abandoned ground - Uniform Civil Procedure Rule 42.1 - successful applicant entitled to 25 per cent of costs
Legislation Cited:	Woollahra Development Control Plan for Advertising and Notification of Development Applications and Applications to Modify Development Consents Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 1995
Cases Cited:	Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602 Kindimindi…