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Dogild Pty Ltd v Warringah Council

Dogild Pty Ltd v Warringah Council

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Case Copied 14 February 2008 47 min read

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Reported Decision: (2008) LGERA 429

Land and Environment Court

of New South Wales

CITATION: Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT:
Dogild Pty Ltd
ACN 085 278 682
RESPONDENT:
Warringah Council

FILE NUMBER(S): 10579 of 2007

CORAM: Biscoe J

KEY ISSUES: Development Consent :- validity of condition of development consent requiring right of carriageway in favour of others over which the public can pass - Newbury tests of validity - meaning and application of test that condition must "fairly and reasonably relate" to permitted development - whether condition requires dedication of land within s 94 Environmental Planning and Assessment Act 1979

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 5, 26(1)(c), 27, 79C(1), 80A, 94, 94B, 96
Environmental Planning and Assessment Regulation 2000 cl 100(1)
Land Acquisition (Just Terms Compensation) Act 1991
Land and Environment Court Act 1979 s 34
Warringah Local Environmental Plan 2000

CASES CITED: Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490
Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566
Charalambous v Ku-ring-gai Council (2007) 155 LGERA 352
Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41
Fitch v Shoalhaven City Council (1987) 67 LGRA 165
Hall and Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 All ER 1
Hammercall Pty Ltd v Gold Coast City Council (2004) 140 LGERA 303
Hill v Blacktown City Council (2007) 154 LGERA 418
King v Bathurst Regional Council (2006) 150 LGERA 362
Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225
Markakis v Mosman Municipal Council [1998] NSWLEC 223
MCC Energy Pty Ltd v Wyong Shire Council (2006) 149 LGERA 59
McGregor v Bathurst City Council [1995] NSWLEC 71
Melbourne Water Corporation v Domus Design Pty Ltd (2007) 154 LGERA 256
Newbury District Council v Secretary of State for the Environment [1981] AC 578
North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470
Parramatta City Council v Peterson (1987) 61 LGRA 286
Save our Street Inc v Settree (2006) 149 LGERA 30
St George Building Society v Manly Municipal Council (1982) 3 APA 370
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245

DATES OF HEARING: 1 and 2 November 2007; 14 December 2007

DATE OF JUDGMENT:
14 February 2008

LEGAL REPRESENTATIVES: APPLICANT:
Mr P Tomasetti, SC
SOLICITORS:
D.C. Balog and Associates

RESPONDENT:
Mr A Galasso, SC
SOLICITORS:
Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

14 February 2008

10579 of 2007

DOGILD PTY LIMITED v WARRINGAH COUNCIL
JUDGMENT

1 HIS HONOUR: The only remaining question in…

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: [2008] NSWLEC 53
Decision Date: 14 February 2008

CaseChat Overview and Summary

In Dogild Pty Ltd v Warringah Council, the Land and Environment Court of New South Wales considered the validity of a condition attached to a development consent granted by Warringah Council. The condition required the creation of a right of carriageway over a section of land owned by Dogild Pty Ltd, to provide access to other properties along The Strand, Dee Why. The key issues were whether the condition met the Newbury tests for validity and whether it required the dedication of land free of cost, which would render it invalid for lack of a relevant contributions plan. The Newbury tests require that a condition have a planning purpose, fairly and reasonably relate to the permitted development, and not be so unreasonable that no reasonable planning authority could have imposed it.

The Court found that while the condition had a legitimate planning purpose, it did not fairly and reasonably relate to the permitted development. The condition was intended to address traffic management issues unrelated to the specific development, and the applicant would not benefit from the creation of the right of carriageway. The condition also failed the third Newbury test as it would impose an unreasonable burden on the applicant. The Court also held that the condition did not require the dedication of land free of cost under s 94 of the Environmental Planning and Assessment Act 1979, and thus was not invalid for lack of a contributions plan.

The Court concluded that the condition was invalid and ordered the parties to prepare minutes of orders to finalise the proceedings. The Court directed that the respondent pay the applicant's costs of the separate question and listed the matter for a final hearing to make orders.

Orders