Currey v Sutherland Shire Council - [2002] NSWLEC 195

Land and Environment Court

of New South Wales

CITATION: Currey v Sutherland Shire Council [2002] NSWLEC 195

PARTIES:
APPLICANT:
Julie Ann Currey
FIRST RESPONDENT:
Sutherland Shire Council
SECOND RESPONDENTS:
Donald Ayres Russell and Jean Elspeth Russell

FILE NUMBER(S): 40027 of 2002

CORAM: Lloyd J

KEY ISSUES:
Judicial Review :- validity of development application - validity of development consent - dual occupancy housing and strata subdivision - severability - non-compliance with development standard - discretion - delegation - failure to consider relevant matters - procedural fairness - lack of finality
Development Consent:- validity

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C and s 80(2)
Local Government Act 1993 s 372 and s 378
Strata Schemes (Freehold Development) Act 1973 s 5, s 8, s 37 and s 37A
Sutherland Shire Local Environmental Plan 1993 cl 14, cl 25(1) and cl 25 (3)
Sutherland Shire Local Environmental Plan 2000 cl 2, cl 6(2), cl 10, cl 19, cl 20 and cl 30

CASES CITED: Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 ;
Botany Bay City Council v Remath Investments No. 6 Pty Ltd (2000) 111 LGERA 446;
Boulton v Burwood Municipal Council (1988) 66 LGRA 131;
Brickworks Ltd v Warringah Shire Council (1963) 108 CLR 569;
Currey v Sutherland Shire Council (1998) 100 LGERA 365;
Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209;
Edward Listin Properties Pty Ltd v North Sydney Council (No. 2) [2000] NSWLEC 181;
El Cheikh v Hurstville City Council [2002] NSWCA 173;
Emanuele v Australian Securities Commission (1997) 188 CLR 114;
Everall v Ku-ring-gai Municipal Council (1991) 72 LGRA 369;
Ex parte Forsberg: Re Warringah Shire Council (1927) 8 LGR (NSW) 74;
Ex parte Renouf: In re Waverley Municipal Council (1924) 24 SR (NSW) 463, (1924-26) 7 LGR (NSW) 37;
Fuller v Bellingen Shire Council, NSWLEC, Hemmings J, 16 June 1988, unreported;
Guthega Development Pty Ltd v The Minister Administering National Parks and Wildlife Act 1974 (1987) 7 NSWLR 353; 61 LGRA 401;
Harris Farm Markets Pty Ltd v Ashfield Fresh Pty Ltd [2002] NSWLEC 106 ;
Hornibrook v Willoughby City Council, NSWLEC, Stein J, 27 August 1996, unreported;
Hornsby Shire Council v Devery (1965) 12 LGRA 34;
Jang Investments Pty Ltd v Sutherland Shire Council, NSWLEC, Hemmings J, 8 September 1989, unreported;
Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113;
Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72;
Kioa v West (1985) 159 CLR 550;
Lyons v Sutherland Shire Council (2001) 117 LGERA 334;
Marnal Pty Ltd v Cessnock City Council (1989) 68 LGRA 135;
Mison v Randwick Municipal Council (1991) 73 LGRA 349;
North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435;
Olsen v City of Camberwell [1926] VLR 58 ;
Parramatta City Council & Anor v Hale & Ors (1982) 47 LGRA 319;
Parramatta City Council v Precision Rubber Service Pty Ltd, NSWLEC, Pearlman J, 10 March…

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: [2002] NSWLEC 195
Decision Date: 11/27/2002

CaseChat Overview and Summary

Julie Ann Currey sought a declaration that the development consent granted by Sutherland Shire Council to Donald Ayres Russell and Jean Elspeth Russell for their property at No. 405 Woolooware Road, Cronulla was void. The applicant also sought orders restraining the respondents from taking any steps in reliance upon that consent and restraining the second respondents from carrying out development otherwise than in accordance with a valid development consent. The council had granted consent subject to a number of conditions. The applicant challenged the validity of this consent on a number of grounds. The court found that the development consent was valid. The court dismissed the application and reserved the question of costs.

Orders