Town Planning (N.S.W.)—Building regulation—Planning scheme ordinance—Approval and consent to erection of building—Application to council for approval deemed by statute to be application for consent of responsible authority in case where consent required—Effect—Whether reference to class or kind of work or to obtaining of consent in particular case—Whether grant of approval operates as consent—Approval and consent void if work not substantially commenced—within twelve months of date of approval and consent—Date of approval—Whether date of determination of responsible authority or date of communication to applicant—Substantial commencement- Whether performance of a substantial part of work or substantial completion—Local Government Act, 1919 (N.S.W.). s. 315.
Decisions
Sept. 25. The following written judgments were delivered:- BARWICK C.J. In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs. I agree entirely with what he has written. I agree that the appeal should be dismissed. (at p352)
MENZIES J. In a judgment which I have had the advantage of reading Gibbs J. sets out, in a manner to which I do not wish to add anything, the circumstances giving rise to this litigation, the matters in issue to be decided in it and the course it has taken. Moreover I am in agreement with his resolution of all the matters now in issue except one, that is, the date of the Council's approval of the respondents' application of 23rd September 1971. (at p352)
2. In my opinion approval was given to that application on 5th October 1971. The minute book of the Council recording its proceedings on 5th October 1971 was not in evidence. However, in conformity with its statutory duty the Council did on 18th October 1971 inform the applicant that it had on 5th October 1971 approved the application subject to stated conditions. This was a notice given by the Council itself (s. 314 (2)). It was signed for the Council by the Town Clerk and s. 620 of the Local Government Act, 1919 (N.S.W.), as amended, applies to it. That letter has been rightly accepted as evidence of the Council's decision on the application. The letter makes it clear that the application was considered by the Council on 5th October 1971 and, in my opinion, was then approved subject to conditions. (at p352)
3. Although I do not doubt that there may be cases where there would be no effective approval of an application without notification to a person making it and there are no doubt many cases where no effective consent would be given for what has been requested without notification, it does seem to me that s. 314 (1) of the Act provides for something to be done by the Council which would be complete upon its decision being formally taken. I consider that s. 314 itself expressly differentiates between the decision of the Council under…
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.
Continue reading Drummoyne Municipal Council v Lebnan
Sign in free to access the full text
Details
AGLC
Drummoyne Municipal Council v Lebnan [1974] HCA 34
Case
[1974] HCA 34
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Drummoyne Municipal Council against a decision of the Supreme Court of New South Wales concerning the respondent, Mr. Lebnan. The dispute centred on the Council's refusal to grant Mr. Lebnan a permit to erect a dwelling on land he owned, which was zoned for residential purposes. Mr. Lebnan sought a declaration that the Council's refusal was invalid and that he was entitled to the permit.
The primary legal issue before the High Court was whether the Council's refusal to grant the permit was lawful, specifically in relation to the Council's power to refuse an application on grounds not explicitly stated in the relevant planning scheme ordinance. The Court had to determine if the Council could rely on considerations of public interest or amenity that were not expressly enumerated as grounds for refusal within the ordinance.
The Court reasoned that the Council's power to refuse an application was limited to the grounds specified in the planning scheme ordinance. While the Council had a general discretion in granting or refusing permits, this discretion had to be exercised within the framework established by the ordinance. The judges held that the Council could not refuse a permit based on considerations of public interest or amenity that were not contemplated or provided for by the ordinance itself. To do so would be to act beyond its statutory powers.
The High Court allowed the appeal, finding that the Council had acted unlawfully in refusing the permit on grounds outside the scope of the planning scheme ordinance. The Court declared that Mr. Lebnan was entitled to the permit and ordered accordingly.