El Khouri v Gemaveld Pty Ltd

Case [2023] NSWCA 78

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78
Hearing dates: 6 April 2023
Decision date: 26 April 2023
Before: Gleeson JA at [1];
Leeming JA at [2];
Adamson JA at [80]
Decision:

Amended summons dismissed, with costs.

Catchwords:

ENVIRONMENT AND PLANNING – judicial review of consent to build new dwelling house – consent granted following conciliation conference in Land and Environment Court – proposed development in fact exceeded height control – exceedance not clear from material before Land and Environment Court – Commissioner found on basis of evidence before him that proposed development did not exceed height control and could be granted in proper exercise of court's functions – applicants brought proceedings in supervisory jurisdiction of Supreme Court – applicants adduced fresh survey evidence establishing height control exceeded – whether compliance with height control a jurisdictional fact – whether prohibition in Local Environmental Plan applied of its own force – significance of consent being granted following conciliation conference as opposed to after a hearing – Ross v Lane [2022] NSWCA 235 considered and applied – compliance with height control not a jurisdictional fact – summons dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 60

Environmental Planning and Assessment Act 1979 (NSW), ss 3.16, 3.19, 3.27, 4.2, 4.3, 4.15, 4.16, 8.7, 8.14, 10.6

Georges River Local Environmental Plan 2021, cl 1.8A

Interpretation Act 1987 (NSW), s 21, Pts 5, 6

Kogarah Local Environmental Plan 2012, cll 4.3, 4.6

Land and Environment Court Act 1979 (NSW), ss 4, 34

State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development, cl 4

Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245

Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2008) 166 FCR 54; [2008] FCAFC 3

AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112

Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297; [1997] HCA 10

Clone Pty Ltd v Players Pty Ltd (in liq) (mgrs and recs apptd) (2018) 264 CLR 165; [2018] HCA 12

Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27

El Khouri v Gemaveld Pty Ltd [2023] NSWSC 25

Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43

Gemaveld Pty Ltd v Georges River Council [2022] NSWLEC 1182

Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114

Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13

R v Judges of the Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113; [1978] HCA 60

Continue reading El Khouri v Gemaveld Pty Ltd

Sign in free to access the full text

Details
AGLC
El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78
Case
[2023] NSWCA 78
Decision Date

CaseChat Overview and Summary

The applicants sought judicial review in the Supreme Court of New South Wales of a consent granted by the Land and Environment Court to the respondent for the construction of a new dwelling house. The dispute concerned whether the proposed development complied with a height control stipulated in the relevant Local Environmental Plan. The consent had been granted following a conciliation conference, with the Commissioner of the Land and Environment Court having found, based on the evidence before him, that the proposed development did not exceed the height control.

The primary legal issues before the Supreme Court were whether compliance with the height control constituted a jurisdictional fact, and whether the prohibition in the Local Environmental Plan applied of its own force, irrespective of the consent. The applicants sought to adduce fresh survey evidence in the Supreme Court proceedings, which they contended established that the height control was indeed exceeded. The Court was also required to consider the significance of the consent being granted after a conciliation conference, as opposed to after a formal hearing.

The Court, applying the principles from *Ross v Lane* [2022] NSWCA 235, determined that compliance with the height control was not a jurisdictional fact. The Court reasoned that the prohibition in the Local Environmental Plan did not operate as a prohibition of its own force in the circumstances, and that the Commissioner had acted within his jurisdiction in granting consent based on the evidence presented to him. The fact that the consent was granted following a conciliation conference did not alter this conclusion.

Consequently, the amended summons was dismissed, with costs awarded to the respondent.

Orders

Orders of the court

Amended summons 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.