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Currey v Sutherland Shire Council

Currey v Sutherland Shire Council

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Reported Decision:
129 LGERA 223

Court of Appeal

CITATION: CURREY v SUTHERLAND SHIRE COUNCIL and RUSSELL [2003] NSWCA 300

HEARING DATE(S): 18 September 2003

JUDGMENT DATE:
18 September 2003

JUDGMENT OF: Spigelman CJ at 1; Sheller JA at 49; Foster AJA at 50

DECISION: Appeal dismissed with costs.

CATCHWORDS: ADMINISTRATIVE LAW - LOCAL GOVERNMENT - validity of development application - validity of development consent - dual occupancy housing - strata subdivision - delegation - assessment and determination

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 77, 78A
Local Government Act 1993 s 378
Strata Schemes (Freehold Development) Act 1973

CASES CITED: Chambers v Maclean Shire Council [2003] NSWCA 100

PARTIES :

Julie Ann Currey (Appellant)
Sutherland Shire Council (First Respondent)
Donald Ayres Russell and Jean Elspeth Russell
(Second Respondents)

FILE NUMBER(S): CA 41198/02

COUNSEL: B J Preston / J Jagot (Appellant)
J Ayling SC (First Respondent)
P Thomasetti / M Fraser (Second Respondents)

SOLICITORS: John C Dobson, Miranda (Appellant)
J Reilly (First Respondent)
Storey & Gough, Parramatta (Second Respondents)

LOWER COURTJURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): 40027/02

LOWER COURT
JUDICIAL OFFICER : Lloyd J

CA 41198/02

SPIGELMAN CJ
SHELLER JA
FOSTER AJA
Thursday 18 September 2003

Julie Ann CURREY v SUTHERLAND SHIRE COUNCIL and RUSSELL

Judgment

1 SPIGELMAN CJ: This is an appeal from a decision of Lloyd J in the Land and Environment Court dismissing the Appellant's Class 4 application seeking a declaration that a decision of the First Respondent ("the Council") to grant development consent to a development application by the Second Respondents is void and of no effect.

2 The development application sought consent for alterations and additions to an existing dwelling house in Woolooware Road, Cronulla, in the Shire of Sutherland, of which the Second Respondents are the owners. The proposed development was to alter and add to an existing dwelling house in order to construct an attached dual occupancy and also for the strata subdivision of the attached dual occupancy. The land has a frontage to Woolooware Road and also has the benefit of a right of way over an adjoining lot. The development proposed would substantially retain the existing dwelling and add a new dwelling at the front of the land facing Woolooware Road. The front dwelling would have direct pedestrian and vehicular access to Woolooware Road. The rear dwelling would have pedestrian and vehicular access via the right of way adjacent to the boundary of the property.

3 The development application was made on 25 February 2000 and, after a long period of consideration by Council and its officers, to which it will be necessary to refer in more detail, by Notice of Determination a development consent was granted, subject to numerous conditions. It purported to be granted in the name of the Council, pursuant to a delegation to the Director of Environmental Services of the Council.

4 There are five grounds of appeal, two of them are related. It is convenient to deal with them under the…

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: [2003] NSWCA 300
Decision Date: 18 September 2003

CaseChat Overview and Summary

Currey v Sutherland Shire Council concerned a dispute regarding the validity of a development consent granted by Sutherland Shire Council for a dual occupancy housing development involving strata subdivision. The applicant, Currey, challenged the validity of the consent. The matter was heard in the Supreme Court of New South Wales.

The central legal issues before the Court were whether the development consent was validly granted, particularly in light of the proposed strata subdivision, and whether the Council had properly exercised its delegated authority in assessing and determining the development application. The Court was required to consider the interplay between the relevant provisions of the *Environmental Planning and Assessment Act 1979* (NSW) and the Council's development control plans and policies.

The Court's reasoning focused on the interpretation of the planning legislation and the Council's internal procedures. It was held that the development consent was validly granted, and that the Council had not acted outside its powers. The Court applied principles of administrative law concerning the validity of decisions made under delegated authority, finding that the Council's assessment and determination process met the statutory requirements. The proposed strata subdivision was considered a matter that could be dealt with subsequent to the grant of development consent, and did not invalidate the initial consent itself.

The appeal was dismissed, and the appellant was ordered to pay the costs of the proceedings.

Orders

Orders of the court

Appeal dismissed with costs.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	CURREY v SUTHERLAND SHIRE COUNCIL and RUSSELL [2003] NSWCA 300
HEARING DATE(S):	18 September 2003
JUDGMENT DATE:	18 September 2003
JUDGMENT OF:	Spigelman CJ at 1; Sheller JA at 49; Foster AJA at 50
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	ADMINISTRATIVE LAW - LOCAL GOVERNMENT - validity of development application - validity of development consent - dual occupancy housing - strata subdivision - delegation - assessment and determination
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 ss 77, 78A Local Government Act 1993 s 378 Strata Schemes (Freehold Development) Act 1973
CASES CITED:	Chambers v Maclean Shire Council [2003] NSWCA 100
PARTIES :	Julie Ann Currey (Appellant) Sutherland Shire Council (First Respondent) Donald Ayres Russell and Jean Elspeth Russell (Second Respondents)
FILE NUMBER(S):	CA 41198/02
COUNSEL:	B J Preston / J Jagot (Appellant) J Ayling SC (First Respondent) P Thomasetti / M Fraser (Second Respondents)
SOLICITORS:	John C Dobson, Miranda (Appellant) J Reilly (First Respondent) Storey & Gough, Parramatta (Second Respondents)

LOWER COURTJURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	40027/02
LOWER COURT JUDICIAL OFFICER :	Lloyd J