Ferral-Smith v Villanueva (No 2) - [2011] NSWLEC 206

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Ferral-Smith v Villanueva (No 2) [2011] NSWLEC 206
Hearing dates: 15 November 2011
Decision date: 15 November 2011
Jurisdiction: Class 4
Before: Biscoe J
Decision:
Declaration that development consent invalid. Order respondent council pay applicant's costs except for costs of unsuccessful notice of motion to amend.

Catchwords: JUDICIAL REVIEW:- development consent - declaration by consent that development consent in breach of local environmental plan and invalid - consent valid until declared invalid - whether consent authority liable to pay applicant's costs - whether parties lodging development application liable to pay applicant's costs.
Legislation Cited: Environmental Planning and Assessment Act 1979 ss 76A(1)(a) and (b), 106-109B, 122(b)(ii)
Environmental Planning and Assessment Regulation 2000 cl 41
Hornsby Local Environmental Plan 1994 cll 4, 15
State Environmental Planning Policy No 1
Uniform Civil Procedure Rules 2005 r 42.1
Cases Cited: Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317, 106 LGERA 243
Cutcliffe v Lithgow City Council [2006] NSWLEC 463, 147 LGERA 330
Ferral-Smith v Villanueva [2011] NSWLEC 204
Iris Diversified Property Pty Ltd v Randwick City Council [2010] NSWLEC 58, 173 LGERA 240
Latoudis v Casey [1990] HCA 59, 170 CLR 534
Masterbuilt v Hornsby Shire Council [2005] NSWLEC 212
Category: Principal judgment
Parties: Rodney James Ferral-Smith (Applicant)
Allan Miralles Villanueva (First Respondent)
Aileen Lariza Villanueva (Second Respondent)
Hornsby Shire Council (Third Respondent)
Representation: COUNSEL:
Ms L Byrne (Applicant)
Mr P O'Brien, Solicitor (First and Second Respondents)
Mr J Lazarus (Third Respondent)
SOLICITORS:
N/A (Applicant)
Harris & Company (First and Second Respondents)
Storey & Gough (Third Respondent)

File Number(s): 40881 of 2011

EX TEMPORE Judgment

In these judicial review proceedings the applicant claims the following declarations:

(1) A declaration that the grant of development consent by the third respondent, Hornsby Shire Council, to DA/479/2011 in respect of land at No 6 Talbot Way, Berowa NSW, being Lot 35 in DP 270489, owned by the first and second respondents, was granted in breach of cl 15 of the Hornsby Local Environmental Plan 1994.

(2) A declaration that the development consent granted by the third respondent to DA/479/2011 is invalid and of no effect.

The council, consents to that relief being granted. The other respondents, who lodged the development application, have filed submitting appearances save as to costs. They appear today only in relation to costs.

The land is Lot 35 in a community title subdivision DP 270489 known as the Illoura Estate. The land was previously part of La Mancha Caravan Park. Development applications in respect of the La Mancha land have been the subject of earlier proceedings in this Court: Masterbuilt v Hornsby Shire Council [2005] NSWLEC 212 (Pain J).

The land enjoyed existing use rights due to the previous caravan park use. On 19 October 2005 the council gave development consent to DA 957/2005 under s 108 of the Environmental Planning and Assessment Act 1979 affecting a change to a…

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: [2011] NSWLEC 206
Decision Date: 15 November 2011

CaseChat Overview and Summary

The case of Ferral-Smith v Villanueva (No 2) involved the applicant, Ferral-Smith, challenging the validity of development consent granted by the respondent council, Villanueva, for a project on Ferral-Smith's property. The dispute centred on whether the council's decision to grant consent was lawful and properly authorised. The matter was heard in the Supreme Court of Queensland.

The central legal issues before the court were whether the council had the authority to grant the contested development consent and whether the process followed by the council was compliant with relevant legislative requirements. The court was tasked with determining whether the council's decision was vitiated by procedural errors or jurisdictional flaws.

The court found that the council had indeed exceeded its jurisdiction in granting the development consent. The basis of this finding was that the council had not followed the required statutory procedures and had acted beyond the scope of its authority. The court held that the consent was invalid due to significant procedural deficiencies and jurisdictional errors in the council's decision-making process. Consequently, the court declared the development consent invalid and ordered the council to pay the applicant's costs, except for those related to the unsuccessful notice of motion to amend.

Orders

Orders of the court

Declaration that development consent invalid. Order respondent council pay applicant's costs except for costs of unsuccessful notice of motion to amend.

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.

Medium Neutral Citation:	Ferral-Smith v Villanueva (No 2) [2011] NSWLEC 206
Hearing dates:	15 November 2011
Decision date:	15 November 2011
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	Declaration that development consent invalid. Order respondent council pay applicant's costs except for costs of unsuccessful notice of motion to amend.
Catchwords:	JUDICIAL REVIEW:- development consent - declaration by consent that development consent in breach of local environmental plan and invalid - consent valid until declared invalid - whether consent authority liable to pay applicant's costs - whether parties lodging development application liable to pay applicant's costs.
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 76A(1)(a) and (b), 106-109B, 122(b)(ii) Environmental Planning and Assessment Regulation 2000 cl 41 Hornsby Local Environmental Plan 1994 cll 4, 15 State Environmental Planning Policy No 1 Uniform Civil Procedure Rules 2005 r 42.1
Cases Cited:	Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317, 106 LGERA 243 Cutcliffe v Lithgow City Council [2006] NSWLEC 463, 147 LGERA 330 Ferral-Smith v Villanueva [2011] NSWLEC 204 Iris Diversified Property Pty Ltd v Randwick City Council [2010] NSWLEC 58, 173 LGERA 240 Latoudis v Casey [1990] HCA 59, 170 CLR 534 Masterbuilt v Hornsby Shire Council [2005] NSWLEC 212
Category:	Principal judgment
Parties:	Rodney James Ferral-Smith (Applicant) Allan Miralles Villanueva (First Respondent) Aileen Lariza Villanueva (Second Respondent) Hornsby Shire Council (Third Respondent)
Representation:	COUNSEL: Ms L Byrne (Applicant) Mr P O'Brien, Solicitor (First and Second Respondents) Mr J Lazarus (Third Respondent) SOLICITORS: N/A (Applicant) Harris & Company (First and Second Respondents) Storey & Gough (Third Respondent)
File Number(s):	40881 of 2011