Gorczynski v Perera and Dee - [2003] NSWLEC 6

Land and Environment Court

of New South Wales

CITATION: Gorczynski v Perera & Dee & Ors [2003] NSWLEC 6 revised - 15/08/2003

PARTIES:
APPLICANT
Peter Francis Gorczynski
FIRST RESPONDENTS
Ravini Neluka Perera and Rebecca Patrica Dee
SECOND RESPONDENT
Annandale Services Pty Limited trading as Ray White Real Estate Annandale
THIRD RESPONDENT
Leichhardt Council

FILE NUMBER(S): 40208 of 2001

CORAM: Cowdroy J

KEY ISSUES: Development Consent :- challenge to validity - whether statutory power for grant of consent - manifest unreasonableness

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 78A, s 79C, s 121B
Leichhardt Local Environmental Plan 2000
Building Code of Australia

CASES CITED: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223;
Australian Heritage Commission v Mount Isa Mines (1995) 60 FCR 456 ;
Caledonian Colleries Ltd & Ors v The Australian Coal and Shale Employees' Federation [No.1] (1929) 42 CLR 358;
Corporation of the City of Enfield v Development Assessment Commission & Anor (1999) 199 CLR 135;
Ex parte Mullen; Re Hood (1935) 35 SR (NSW) 289;
J & J O'Brien v South Sydney City Council (2002) 121 LGERA 223;
Johns v Australian Securities Commission (1993) 178 CLR 408;
Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 ;
Minister for Urban Affairs and Planning v Rosemount Estates (1996) 91 LGERA 31;
Mison v Randwick Municipal Council (1991) 23 NSWLR 734 ;
Oshlack v Richmond River Council (1998) 193 CLR 72;
Timbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) 46 NSWLR 55 ;
Steedman v Baulkham Hills Shire Council [No. 1] [1991] 87 LGRA 26

DATES OF HEARING: 27/6/2002; 28/6/2002; 29/6/2002/; 1/7/2002; 2/7/2002; 11/11/2002; 13/11/2002; 14/11/2002; 22/11/2002; 2/12/2002; 3/12/2002

DATE OF JUDGMENT:
02/06/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr B Larkin (Barrister) with Ms C Morris (Barrister)
SOLICITORS
Windeyer Dibbs
FIRST and SECOND RESPONDENTS
Mr P Clay
SOLICITORS
Mallesons Stephen Jaques
THIRD RESPONDENT
Mr Preston SC with Ms H Irish (Barrister)
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40208 of 2001

COWDROY J

6 February 2003

PETER FRANCIS GORCZYNSKI

Applicant

RAVINI NELUKA PERERA AND REBECCA PATRICA DEE

First Respondents

ANNANDALE SERVICES PTY LIMITED trading as RAY WHITE REAL ESTATE ANNANDALE

Second Respondent

LEICHHARDT COUNCIL

Third Respondent

Judgment

Introduction

1 In these proceedings the applicant challenges two development consents (“the consents”) granted by the third respondent (“the council”) to the first respondents who became the owners of the property known as No. 80 Booth Street, Annandale (“No. 80”) in December 1999.

2 The applicant is the owner of adjoining land known as No. 78 Booth Street, Annandale (“No. 78”). The challenged consents relate to the use of the ground floor of No. 80 and the construction of a garage at the rear of No. 80. Both No. 78 and No. 80 are contained in the same building. The second respondent in these proceedings, Annandale Services Pty Limited, is the tenant of No.…

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 Gorczynski v Perera and Dee

Details

AGLC: Gorczynski v Perera and Dee [2003] NSWLEC 6
Case: [2003] NSWLEC 6
Decision Date: 02/06/2003

CaseChat Overview and Summary

The applicant, Peter Francis Gorczynski, sought to challenge two development consents granted by the Leichhardt Council to the first respondents, Ravini Neluka Perera and Rebecca Patrica Dee, who were the owners of No. 80 Booth Street, Annandale. The applicant's property, No. 78 Booth Street, Annandale, adjoined the property in question. The first consent pertained to the use of the ground floor of No. 80 as a real estate agency, while the second consent related to the construction of a garage at the rear of No. 80. The applicant argued that the council had no power to grant these consents as they violated the provisions of the Leichhardt Local Environmental Plan 2000. The court was required to determine whether the council's decision to grant the consents was reasonable and in compliance with the relevant legislation and planning instruments.

The court found that the provisions of cl 23(6) of the Leichhardt Local Environmental Plan 2000, which allowed for the commercial use of non-residential buildings in a residential zone, did not constitute jurisdictional facts. Instead, the council's determination of the satisfaction of relevant criteria was a matter of subjective assessment in the exercise of its statutory power. The court was not required to make a determination concerning the correctness of the factual matters contained in cl 23(6). Instead, the court had to assess whether the council's decision in granting the consents was reasonable within the Wednesbury sense.

Regarding the use consent, the court found that the council's decision that the requirements of cl 23(6)(a) were satisfied was not unreasonable in the Wednesbury sense. The court determined that cl 23(6)(a) did not necessarily require that the whole or part of the building be originally constructed for a non-residential use. Instead, the question was whether the building, at the date of the application before the council, was constructed wholly or partially for a non-residential use. The court concluded that the evidence before the council supported the conclusion that part of the building was constructed for a non-residential use.

In relation to cl 23(6)(b), the court found that the council's decision regarding compliance with the requirements of cl 23(6)(b) was not unreasonable in the Wednesbury sense. The court determined that there was an implicit requirement in the text of cl 23(6)(b) that the building, prior to conversion, was capable of meeting the applicable building, health, and amenity standards. The council had addressed all relevant matters specified in such clause, and the conditions imposed were intended to address them.

The court also addressed the applicant's challenges to the validity of the garage consent. The court found that the council possessed power to grant consent for the erection of a building and the use thereof for the purpose of dwellings, which provided an additional source of power to support the grant of the garage consent.

Finally, the court ordered that the application be dismissed, and the applicant pay the costs, including reserved costs, of each of the respondents. The exhibits were to be returned.

Orders