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Farah v Warringah Council

Farah v Warringah Council

Case [2006] NSWLEC 191 26 April 2006

Development Consent

Procedural Fairness

Limitation Periods

Planning & Development Law

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Pending Appeal:

Land and Environment Court

of New South Wales

CITATION: Farah v Warringah Council & Others [2006] NSWLEC 191

PARTIES:
APPLICANTS
Anwar Farah and Susan Farah
FIRST RESPONDENT
Warringah Council
SECOND RESPONDENT
KSSLZ#13 Pty Limited
THIRD RESPONDENTS
John Ward and Mary Ward

FILE NUMBER(S): 41107 of 2005

CORAM: Talbot J

KEY ISSUES:
Development Application :- whether consent of owner of other land required.
Development Application:- identification of land to which the proposed development relates.
Development Consent:- whether authorises work on other land.
Procedural Fairness:- whether objectors afforded proper opportunity to be heard.
Development Consent:- whether determination of application final where deferred commencement conditions are imposed.
Deferred Commencement Consent:- whether determination final.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C,
Environmental Planning and Assessment Regulation 2000 cl 49, cl 50(1)(a). cl 1(i) of Pt 1, Sch 1
Real Property Act 1900

CASES CITED: Cameron v Nambucca Shire Council (1997) 95 LGERA 268 ;
Currey v Sutherland Shire Council and Others (1998) 100 LGERA 365;
Hillpalm Pty Limited v Tweed Shire Council [2002] NSWCA 322, unreported;
Hillpalm Pty Limited v Tweed Shire Council and Another (2002) 119 LGERA 86;
Huntington & MacGillivray v Hurstville City Council & Others [2004] NSWLEC 694, unreported;
Kioa and Others v West and Another (1985) 159 CLR 550 ;
North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470;
Remath Investments No. 6 Pty Ltd v Botany Bay City Council (No.2) (unreported No. 10649 of 1996, 11 December 1996) ;
Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106 ;
Weal v Bathurst City Council (2000) 111 LGERA 181

DATES OF HEARING: 03/04/06 - 05/04/06

DATE OF JUDGMENT:
04/26/2006

LEGAL REPRESENTATIVES: APPLICANT
Mr P J McEwen SC with Mr M D Seymour (Barrister)
SOLICITORS
Elias Gates & Associates

FIRST RESPONDENT
Mr A E Galasso (Barrister)
SOLICITORS
Wilshire Webb
SECOND RESPONDENT
Mr P C Tomasetti (Barrister)
SOLICITORS
Henry Davis York
THIRD RESPONDENT
Submitting Appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

26 April 2006
41107 of 2005 Farah v Warringah Council and Others

JUDGMENT

1 Talbot J: These proceedings are instituted as a challenge to a deferred commencement development consent granted to KSSLZ#13 Pty Limited (“the second respondent”) by Warringah Council (“the first respondent”) in respect of the proposed development of a child care centre at 723 Warringah Road, Forestville (“the subject land”) owned by John Ward and Mary Ward (“the third respondents.”) The third respondents have made a submitting appearance.

2 The subject land is a battle axe block comprising Lot 3 in Deposited Plan 25050. The applicants’ land was previously Lot 4 in DP 25050 but has been re subdivided into Lots 401 and 402 in DP 776120. The access to Lot 401 and 402 is along the handle of a battle axe leading from Warringah Road. The titles to Lot 401 and 402 respectively have the benefit of and bear the burden of a right of…

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 Farah v Warringah Council

Details

AGLC: Farah v Warringah Council [2006] NSWLEC 191
Case: [2006] NSWLEC 191
Decision Date: 04/26/2006

CaseChat Overview and Summary

Farah v Warringah Council concerns a challenge to a development consent granted by Warringah Council for the construction of a childcare centre at 723 Warringah Road, Forestville. Anwar Farah and Susan Farah, the applicants, argue that the consent requires the use of their land, which they claim necessitates their consent and procedural fairness. They also argue that the consent is invalid as it was not finally determined and is inconsistent with the registered rights of carriageway under the Real Property Act 1900. The court had to decide whether the development consent was properly made, if the applicants were afforded procedural fairness, if the consent was finally determined, and if the consent was repugnant to the Real Property Act.

The court found that the development application was properly made as it related solely to Lot 3 in DP 25050, and the consent of the owners of that land was provided. The applicants were afforded procedural fairness as they were given multiple opportunities to object and make submissions. However, the court found that the consent was not finally determined as the traffic management plan was not considered before the consent was granted. Finally, the court found that the consent was not repugnant to the Real Property Act as it did not affect the applicants' land at present.

The court declared the development consent void and of no effect, restrained the respondents from using the applicants' land in the manner contemplated by the consent, and reserved costs.

Orders