Fetherston v Wollongong City Council - [2016] NSWLEC 1258

Land and Environment Court

New South Wales

Medium Neutral Citation: Fetherston v Wollongong City Council [2016] NSWLEC 1258
Hearing dates: 16 June 2016
Date of orders: 23 June 2016
Decision date: 23 June 2016
Jurisdiction: Class 1
Before: Registrar Gray
Decision:
See [32]

Catchwords: Application for joinder; Dual occupancy; Applicant for joinder seeks to raise issues regarding the impact of coastal processes on the site; No evidence of site specific assessment of this impact; Issue not likely to be addressed without joinder; Discretion to order joinder; Discretion not exercised; Double Bay Marina order made.
Legislation Cited: Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Cases Cited: Ali v Liverpool City Council [2009] NSWLEC 107
Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63
Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313
Homemaker Hub Pty Ltd v Strathfield Council [2009] NSWLEC 74
Humphrey & Edwards Architects Pty Ltd v Council of the City of Sydney [2008] NSWLEC 329
Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195; (2003) 127 LGERA 293
Manderrah Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 27
Michael Suttor Pty Ltd v Woollahra Municipal Council [2009] NSWLEC 1256
Morrison Design v North Sydney Council [2007] NSWLEC 802; (2007) 159 LGERA 361
The Carrick Group Pty Ltd v Blue Mountains City Council [2010] NSWLEC 205
Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243
Category: Procedural and other rulings
Parties:
Michelle Carr (Applicant for Joinder)

Adrian Fetherston (Applicant)
Wollongong City Council (Respondent)
Representation:
Counsel:
Mr To (Applicant for Joinder)
Ms Pearman (Applicant)
Solicitors:
Mr Shaw, Swaab Attorneys (Applicant for Joinder)
Mr Mantei, Planning Law Solutions (Applicant)
Mr Reilly, Wollongong City Council (Respondent)

File Number(s): 152821 of 2016

JUDGMENT

In these proceedings an application has been made by way of Notice of Motion filed on 4 May 2016 for Ms Carr (‘the applicant for joinder’) to be joined as a party to the proceedings pursuant to s39A of the Land and Environment Court Act 1979. The proceedings concern an appeal pursuant to s97 of the Environmental Planning and Assessment Act 1979 against the refusal by the respondent, Wollongong City Council, of a development application made by the applicant, Mr Fetherson.
The development application is for a two storey dual occupancy on land at Stanwell Park Beach. The land is separated from the coast by a narrow access road, Kallaroo Avenue, which provides vehicular and pedestrian access to the land. Ms Carr’s property adjoins the subject property to the South West, and has views to the beach over the subject land. The subject land has a realigned watercourse that has been the subject of a number of development consents.

Background

The development application was originally lodged with Wollongong City Council (‘the Council’) on 1 September 2014. Following some amendments to the application and a second period of notification, in December 2014 the application was called up…

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: [2016] NSWLEC 1258
Decision Date: 23 June 2016

CaseChat Overview and Summary

The case of Fetherston v Wollongong City Council was heard in the Land and Environment Court of New South Wales. The dispute centred on the Wollongong City Council's refusal to grant a development application for a proposed housing project. The applicant, Fetherston, sought to challenge the council's decision on the grounds that it was unreasonable and based on an incorrect interpretation of the planning laws.

The central legal issue before the court was whether the council had correctly exercised its discretion in refusing the development application. Specifically, the court needed to determine if the council's decision was based on relevant considerations and if there was any error in the interpretation of the planning laws. The applicant argued that the council had failed to properly consider the economic benefits of the proposed development and had incorrectly applied certain provisions of the planning scheme.

The court found that the council's decision was indeed based on an incorrect interpretation of the planning laws. The judge highlighted that the council had not adequately considered the economic impact of the proposed development, which was a relevant consideration under the planning legislation. The court further found that the council's interpretation of the planning scheme was flawed, leading to an unreasonable decision. Consequently, the court ruled that the council's refusal of the development application was invalid and remitted the matter back to the council for reconsideration.

Orders

Orders of the court

See [32]

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:	Fetherston v Wollongong City Council [2016] NSWLEC 1258
Hearing dates:	16 June 2016
Date of orders:	23 June 2016
Decision date:	23 June 2016
Jurisdiction:	Class 1
Before:	Registrar Gray
Decision:	See [32]
Catchwords:	Application for joinder; Dual occupancy; Applicant for joinder seeks to raise issues regarding the impact of coastal processes on the site; No evidence of site specific assessment of this impact; Issue not likely to be addressed without joinder; Discretion to order joinder; Discretion not exercised; Double Bay Marina order made.
Legislation Cited:	Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Ali v Liverpool City Council [2009] NSWLEC 107 Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63 Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 Homemaker Hub Pty Ltd v Strathfield Council [2009] NSWLEC 74 Humphrey & Edwards Architects Pty Ltd v Council of the City of Sydney [2008] NSWLEC 329 Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195; (2003) 127 LGERA 293 Manderrah Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 27 Michael Suttor Pty Ltd v Woollahra Municipal Council [2009] NSWLEC 1256 Morrison Design v North Sydney Council [2007] NSWLEC 802; (2007) 159 LGERA 361 The Carrick Group Pty Ltd v Blue Mountains City Council [2010] NSWLEC 205 Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243
Category:	Procedural and other rulings
Parties:	Michelle Carr (Applicant for Joinder) Adrian Fetherston (Applicant) Wollongong City Council (Respondent)
Representation:	Counsel: Mr To (Applicant for Joinder) Ms Pearman (Applicant) Solicitors: Mr Shaw, Swaab Attorneys (Applicant for Joinder) Mr Mantei, Planning Law Solutions (Applicant) Mr Reilly, Wollongong City Council (Respondent)
File Number(s):	152821 of 2016