Frank Russo v Kogarah Municipal Council - [1998] NSWLEC 95

Land and Environment Court

of New South Wales

CITATION: Frank Russo v. Kogarah Municipal Council [1998] NSWLEC 95

PARTIES:
APPLICANT
Frank Russo
RESPONDENT
Kogarah Municipal Council

FILE NUMBER(S): 10774 of 1997

CORAM: Sheahan J

KEY ISSUES: :-

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land & Environment Court Act 1979
Kogarah Local Environmental Plan No.36

CASES CITED: Golden v Coffs Harbour City Council (1991) 72 LGRA 104 per Stein J at 106-7;
Schaffer Corporation Limited v Hawkesbury City Council ("Schaffer") (1992) 77 LGRA 21;
Challister Limited v Blacktown City Council (1992) 76 LGRA 10.;
Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185;
Bodyline Spa & Sauna (Sydney) Pty Limited v South Sydney City Council ("Bodyline") (1992) 77 LGRA 432;
The Ultimate Skirmish Game Pty Limited v Wollondilly Council, 10400 of 1993;
Russo v Kogarah Council (1995) 86 LGERA 300 at 304-8);
Blair & Ors v Curran & Ors ("Blair v Curran") (1939) 62 CLR 465 at 531-2.;
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589;
Carl Zeiss Stiftung v Raynor & Keeler Limited [No.2] [1967] 1 AC 853 ;
Chamberlain v Deputy Commissioner of Taxation (1987) 62 ALJR 324

DATES OF HEARING: 18/03/98, 22/05/98

DATE OF JUDGMENT:
08/14/1998

LEGAL REPRESENTATIVES:

APPLICANT
Mr J M Atkin, Barrister
Mavrakis & Associates
RESPONDENT
Mr G Newport, Barrister
Ms J Hewitt of Abbott Tout

JUDGMENT:

1. INTRODUCTION

Russo has conducted a child care centre, with Council's consent, at No.3 Rocky Point Road Kogarah ("No.3") since February 1991.

He has for some time been trying to obtain approval to expand the operations of his child care centre (effectively to double in size) into the former/vacant dwelling house property next door, at No.1 Rocky Point Road ("No.1"). Council has consistently maintained its opposition to this expansion proposal.

The history of these proceedings will be described more fully later in the judgment, but they concern an appeal against Council's (latest) refusal of a development application by Russo seeking the use of No.1 for child care facilities.

Council has raised the following preliminary question of law:

"Whether or not the proposal is permissible within the 4(B) Light Industry zoning pursuant to the Kogarah Planning Scheme Ordinance?"

It is common ground that the zoning of the subject site is in fact "4(b)(Light Industrial Zone)" under Kogarah Local Environmental Plan No.36 (Kogarah Precinct) which amends the Planning Scheme Ordinance (for simplicity I will refer to this documentary planning regime as "the plan").

When Mr Atkin, Counsel for Russo, made his submissions on the question of law as posed, on the first hearing day, 18 March 1998, Counsel for the Council met him with an argument that the issues in the appeal are res judicata.

In those circumstances there would be little utility for Russo in the Court's answering the preliminary question of law simply in the affirmative.

It was therefore agreed between the parties, and with the Court, that both questions should be determined, namely permissibility and res…

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 Frank Russo v Kogarah Municipal Council

Details

AGLC: Frank Russo v Kogarah Municipal Council [1998] NSWLEC 95
Case: [1998] NSWLEC 95
Decision Date: 08/14/1998

CaseChat Overview and Summary

Frank Russo sought to expand his child care centre into an adjacent property owned by him. Kogarah Municipal Council opposed the proposal, which was subsequently refused. Russo appealed the decision to the Land and Environment Court. The court was required to determine whether the proposed expansion was permissible within the Light Industrial zoning under the Kogarah Local Environmental Plan No.36, and whether the issues were res judicata. The Court found that the proposed expansion was not permissible within the Light Industrial zoning, as it was not consistent with the objectives of the zone. The Court also found that the issues were res judicata, as they had already been determined in previous proceedings. Therefore, the appeal was dismissed and there would be no order as to costs.

Orders