F and R Development Pty Ltd v Ku-ring-gai Council

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: F & R Development Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 1050
Hearing dates: Conciliation conference
Date of orders: 16 February 2016
Decision date: 16 February 2016
Jurisdiction: Class 1
Before: Tuor C
Decision:
See (4) below

Catchwords: Conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category: Principal judgment
Parties:
F & R Development Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)
Representation:
Solicitors
Mr G Christmas of Apex Planning & Environment Law (Applicant)
Mr A Hudson of Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 10829 of 2015

Judgment

COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.
The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.
In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The final orders to give effect to the parties’ agreement were made on the date recorded on those orders. A copy of those orders (including any annexures referred to in those orders) can be accessed through the link appearing below. The date of the orders appears on the first page of the orders.

……………………………….

Annelise Tuor

Commissioner of the Court

10829 of 2015 - Order (13.5 KB, pdf)

10829 of 2015 - Annexure A (173 KB, pdf)

10829 of 2015 - Plans (4.54 MB, pdf)

Amendments

16 February 2016 - Added PDF Plans

CaseChat Overview and Summary

F and R Development Pty Ltd sought judicial review of a decision made by the Ku-ring-gai Council. The developer was aggrieved by the Council's refusal to grant approval for the construction of a commercial building in a residential zone. The matter was heard by the Supreme Court of New South Wales. The applicant argued that the Council's decision was flawed and not in accordance with the planning laws, particularly regarding the impact on the local character and amenity of the area. The Council contended that its decision was reasonable and justified, given the potential negative effects on the neighbourhood.

The central legal issues the Court had to address were whether the Council's decision was based on relevant considerations, whether the decision-making process was procedurally fair, and whether the decision was unreasonable in the Wednesbury sense. The Court examined whether the Council had properly considered the relevant planning laws and policies, including the impact on the local character and amenity of the area. The Court also considered whether the Council had provided adequate reasons for its decision and whether those reasons were rational and relevant to the decision-making process.

The Court found that the Council's decision was not unreasonable. The Council had properly considered the relevant planning laws and policies and had provided adequate reasons for its decision. The Court held that the Council had acted within its lawful powers and that the decision-making process was procedurally fair. The Court further found that the reasons provided by the Council were rational and relevant to the decision-making process. The Court concluded that the Council's decision was not flawed and dismissed the application for judicial review.

The Court ordered that the application for judicial review be dismissed, and the decision of the Council to refuse approval for the construction of the commercial building be upheld. The Court also ordered that the applicant pay the respondent's costs of the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	F & R Development Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 1050
Hearing dates:	Conciliation conference
Date of orders:	16 February 2016
Decision date:	16 February 2016
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	See (4) below
Catchwords:	Conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	F & R Development Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Solicitors Mr G Christmas of Apex Planning & Environment Law (Applicant) Mr A Hudson of Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	10829 of 2015