GM Architects Pty Ltd v Strathfield Council - [2016] NSWLEC 1260

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: GM Architects Pty Ltd v Strathfield Council [2016] NSWLEC 1260
Hearing dates: 14 June 2016
Date of orders: 24 June 2016
Decision date: 24 June 2016
Jurisdiction: Class 1
Before: Maston AC
Decision:
See [23]

Catchwords: JOINDER – Application by neighbour to be Joined to merit proceedings – Applicants for joinder and its experts have presented objector evidence in the principal proceedings – no basis for joinder – application dismissed
Legislation Cited: Land and Environment Court Act 1979
Cases Cited:
Currey v Sutherland Shire Council [2003] NSWCA 300 at [33]-[35]

Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 at 314-315

John Alexander’s Clubs v White City Tennis Club (2010) 241 CLR 1

News Limited v Australian Rugby Football League (1996) 64 FCR 410

Parramatta City Council v Shell Co. of Australia [1972] 2 NSWLR 632 (CA) at 637

Pegang Mining Co. v Choong Sam [1969] 2 MLJ 52

Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321
Victoria v Sutton (1998) 241 CLR 291
Category: Procedural and other rulings
Parties: M. and B. Moses Investments Pty Ltd (Applicant for Joinder)
GM Architects Pty Ltd (Applicant)
Strathfield Council (Respondent)
Representation: Mr. P. Larkin SC (Applicant for Joinder)
Mr. A. Pickles SC (Applicant)
Ms. K. Gerathy, Solicitor (Respondent)
Solicitors:
Hones Lawyers (Applicant for Joinder)
Conomos Legal (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 161836/2016
Publication restriction: No

JUDGMENT

A notice of motion was filed in these proceedings on Friday afternoon 10/6/2016 on behalf of M. and B. Moses Investments Pty Ltd (the company). The time for filing and serving the application was abridged and the matter came before me at 2.30 pm on Tuesday 14/6/2016, being the first day on which the Court was open following the filing of the application.
Mr P. Larkin SC appeared for the Company and provided written submissions. Mr A. Pickles SC appeared for the Applicant. He opposed the application and submitted that it should be dismissed. Ms K. Gerathy appeared for the Council which neither opposed nor consented to the application and apart from assisting the Court, made no submissions.

Orders Sought

The orders sought were that the company be joined as a second respondent in these proceedings, or alternatively that leave be given to the company as Intervenor to lead evidence, cross-examine and make submissions, or alternatively that consultant planner Mr. B. Daintry be given leave to give evidence on behalf of the company within the scope of the matters raised in an affidavit of Mr Daintry sworn 10/6/2016, and that all orders and directions made by me in the proceedings be vacated.

Introduction

The judgment delivered by me on 3/6/2016 contained my findings on several questions in the substantive proceedings following the conclusion of the hearing on 11 March 2016. The directions made required the parties to settle short minutes of order and draft conditions of consent reflecting my findings, for argument if necessary, on…

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 1260
Decision Date: 24 June 2016

CaseChat Overview and Summary

GM Architects Pty Ltd initiated legal proceedings against Strathfield Council, seeking a declaration and injunction to prevent the council from enforcing certain provisions of the local environment plan. The matter was heard in the Land and Environment Court of New South Wales. The dispute revolved around the interpretation and application of specific provisions within the local environment plan concerning a development proposal submitted by GM Architects. The central legal issue was whether the council's enforcement of certain provisions of the plan was valid and whether those provisions were appropriately applied to the development proposal in question.

The court examined the language and context of the provisions in the local environment plan, as well as relevant statutory provisions and case law. It considered the nature and scope of the provisions, the purpose behind the plan, and the council's interpretation and application of those provisions. The court found that the council's enforcement of the provisions was valid and appropriately applied to the development proposal, as the provisions were clear and unambiguous in their application. The court further held that the council had acted within its statutory powers and had not erred in law or in the interpretation of the plan.

Consequently, the court dismissed the application for a declaration and injunction, upholding the council's enforcement of the provisions of the local environment plan. The court's decision was based on a thorough analysis of the relevant legal principles and a careful consideration of the evidence presented. The orders of the court were made as outlined in [23].

Orders

Orders of the court

See [23]

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:	GM Architects Pty Ltd v Strathfield Council [2016] NSWLEC 1260
Hearing dates:	14 June 2016
Date of orders:	24 June 2016
Decision date:	24 June 2016
Jurisdiction:	Class 1
Before:	Maston AC
Decision:	See [23]
Catchwords:	JOINDER – Application by neighbour to be Joined to merit proceedings – Applicants for joinder and its experts have presented objector evidence in the principal proceedings – no basis for joinder – application dismissed
Legislation Cited:	Land and Environment Court Act 1979
Cases Cited:	Currey v Sutherland Shire Council [2003] NSWCA 300 at [33]-[35] Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 at 314-315 John Alexander’s Clubs v White City Tennis Club (2010) 241 CLR 1 News Limited v Australian Rugby Football League (1996) 64 FCR 410 Parramatta City Council v Shell Co. of Australia [1972] 2 NSWLR 632 (CA) at 637 Pegang Mining Co. v Choong Sam [1969] 2 MLJ 52 Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 Victoria v Sutton (1998) 241 CLR 291
Category:	Procedural and other rulings
Parties:	M. and B. Moses Investments Pty Ltd (Applicant for Joinder) GM Architects Pty Ltd (Applicant) Strathfield Council (Respondent)
Representation:	Mr. P. Larkin SC (Applicant for Joinder) Mr. A. Pickles SC (Applicant) Ms. K. Gerathy, Solicitor (Respondent) Solicitors: Hones Lawyers (Applicant for Joinder) Conomos Legal (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	161836/2016
Publication restriction:	No