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Goldberg v Waverley Council

Goldberg v Waverley Council

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Reported Decision: 156 LGERA 27

Land and Environment Court

of New South Wales

CITATION: Goldberg v Waverley Council [2007] NSWLEC 259
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT:
Paul Anton Goldberg
RESPONDENT:
Waverley Council

FILE NUMBER(S): 10058 of 2007

CORAM: Biscoe J

KEY ISSUES: Jurisdiction :- whether under s 39(2) Land and Environment Court Act 1979 the Court, for the purposes of hearing and disposing of an appeal from a council development refusal, has council’s functions and discretions as roads authority to grant consent for roadwork under s138 Roads Act 1993 and (in relation to that consent) as determining authority under Part 5 Environmental Planning and Assessment Act 1979

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 78A(8), 79C, 97, 110, 111, 112 ,112A, 112C, 112D, 113, 114, 115, 119
Environmental Planning and Assessment Regulation 2000 cls 228(1), 243
Land and Environment Court Act 1979 ss 4, 38, 39
Roads Act 1993 ss 6(1), 7, 138, 139(1)

CASES CITED: Bailey v Forestry Commission of NSW (1989) 67 LGRA 200;
Building Recyclers Investments Pty Ltd v Marrickville Council (2003) 131 LGERA 413;
Connery v Manly Council (1999) 105 LGERA 451;
Gibson v Mosman Municipal Council (2001) 114 LGERA 416;
Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353;
Jarasius v Forestry Commission of NSW [No 1] (1988) 71 LGRA 79;
Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51;
Kogarah Municipal Council v Kent (1981) 46 LGRA 334;
McDougall v Warringah Shire Council (1993) 30 NSWLR 258;
Mirvac Projects No 2 Pty Ltd v Concord Municipal Council (1993) 81 LGERA 441;
North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740;
Paino v Woollahra Municipal Council (1990) 71 LGRA 62;
Prineas v Forestry Commission of NSW (1983) 49 LGRA 402;
Prineas v Forestry Commission of NSW (1984) 53 LGRA 160;
Rundle v Tweed Shire Council (1989) 68 LGRA 308;
Sankey v Whitlam (1978) 142 CLR 1;
Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council [2006] NSWLEC 733;
Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104;
Smith v Wyong Shire Council (2003) 132 LGERA 148 (CA);
Strathfield Municipal Council v Drew (1985) 1 NSWLR 338;
Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724;
Sydney City Council v Ipoh Pty Ltd (2006) 149 LGERA 329;
Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598

DATES OF HEARING: 20 April 2007

DATE OF JUDGMENT:
25 May 2007

LEGAL REPRESENTATIVES:
APPLICANT:
Mr A Galasso SC
SOLICITORS:
Landerer & Company
RESPONDENT:
Mr T Robertson SC
SOLICITORS:
Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

25 May 2007

10058 of 2007 PAUL ANTON GOLDBERG v WAVERLEY COUNCIL
JUDGMENT

1 HIS HONOUR: This case concerns the…

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: [2007] NSWLEC 259
Decision Date: 25 May 2007

CaseChat Overview and Summary

Goldberg v Waverley Council is a case before the Land and Environment Court of New South Wales. The dispute concerns the scope of judicial review in the context of a development application and the subsequent appeal process. The applicant, Goldberg, challenges a decision made by Waverley Council regarding a development application, contending that the council improperly exercised its discretion and that the decision was unreasonable. The central legal issues revolve around the interpretation of sections 39(2) and 80 of the Environmental Planning and Assessment Act 1979 (EPA Act) and the extent of the court's discretion in reviewing such decisions.

The court examined whether section 39(2) of the EPA Act, which provides that the court may affirm, vary or set aside a decision under review, extends to allowing the court to make a decision on the development application itself. The court found that the phrase "matter the subject of the appeal" in section 39(2) does not merely refer to the original decision but encompasses the broader scope of the matter, including the development application. This interpretation was supported by the court's reference to the cases of Paino and McDougall, which highlighted the broader scope of the court's powers in reviewing such matters. The court determined that section 39(2) indeed empowers it to exercise all the functions and discretions that the council had in making its original decision.

In conclusion, the court found that the appeal was not limited to reviewing the council's decision but extended to the broader scope of the development application. The court's interpretation of section 39(2) of the EPA Act allows it to affirm, vary, or set aside the council's decision, as well as to make a decision on the development application itself. This broader interpretation aligns with the statutory framework and ensures that the court has the necessary powers to effectively review and determine development applications on appeal.

Orders

Orders of the court

” the subject of the appeal. The latter is apparent from the shift of language within s 39(2) from “decision” to “matter” and is supported by authority: Paino which was cited in Ipoh at [52] and McDougall at 264. If the phrase in s 39(2) “matter the subject of the appeal” was confined to the object of the Pt 4 development application which required development consent, there would be no need for s 39(2) because under s 80 of the EPA Act the consent authority must determine the application, under s 97 of the EPA Act an appeal lies, and under s 17 of the Court Act the jurisdiction of the Court to hear and determine the appeal is engaged. Section 39(2) gives to the Court, in addition, all the functions and discretions which the council had.

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.

CITATION:	Goldberg v Waverley Council [2007] NSWLEC 259 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT: Paul Anton Goldberg RESPONDENT: Waverley Council
FILE NUMBER(S):	10058 of 2007
CORAM:	Biscoe J
KEY ISSUES:	Jurisdiction :- whether under s 39(2) Land and Environment Court Act 1979 the Court, for the purposes of hearing and disposing of an appeal from a council development refusal, has council’s functions and discretions as roads authority to grant consent for roadwork under s138 Roads Act 1993 and (in relation to that consent) as determining authority under Part 5 Environmental Planning and Assessment Act 1979
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 ss 78A(8), 79C, 97, 110, 111, 112 ,112A, 112C, 112D, 113, 114, 115, 119 Environmental Planning and Assessment Regulation 2000 cls 228(1), 243 Land and Environment Court Act 1979 ss 4, 38, 39 Roads Act 1993 ss 6(1), 7, 138, 139(1)
CASES CITED:	Bailey v Forestry Commission of NSW (1989) 67 LGRA 200; Building Recyclers Investments Pty Ltd v Marrickville Council (2003) 131 LGERA 413; Connery v Manly Council (1999) 105 LGERA 451; Gibson v Mosman Municipal Council (2001) 114 LGERA 416; Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353; Jarasius v Forestry Commission of NSW [No 1] (1988) 71 LGRA 79; Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Kogarah Municipal Council v Kent (1981) 46 LGRA 334; McDougall v Warringah Shire Council (1993) 30 NSWLR 258; Mirvac Projects No 2 Pty Ltd v Concord Municipal Council (1993) 81 LGERA 441; North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740; Paino v Woollahra Municipal Council (1990) 71 LGRA 62; Prineas v Forestry Commission of NSW (1983) 49 LGRA 402; Prineas v Forestry Commission of NSW (1984) 53 LGRA 160; Rundle v Tweed Shire Council (1989) 68 LGRA 308; Sankey v Whitlam (1978) 142 CLR 1; Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council [2006] NSWLEC 733; Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104; Smith v Wyong Shire Council (2003) 132 LGERA 148 (CA); Strathfield Municipal Council v Drew (1985) 1 NSWLR 338; Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724; Sydney City Council v Ipoh Pty Ltd (2006) 149 LGERA 329; Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598
DATES OF HEARING:	20 April 2007
DATE OF JUDGMENT:	25 May 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr A Galasso SC SOLICITORS: Landerer & Company RESPONDENT: Mr T Robertson SC SOLICITORS: Staunton Beattie