Gosling v Penrith City Council - [2016] NSWLEC 1288

Land and Environment Court

New South Wales

Medium Neutral Citation: Gosling v Penrith City Council [2016] NSWLEC 1288
Hearing dates: 13 May, 8 July 2016
Date of orders: 12 July 2016
Decision date: 12 July 2016
Jurisdiction: Class 1
Before: Dixon C
Decision:
See paragraph [48]

Catchwords: APPEAL – Building Certificate application – unauthorised fence
Legislation Cited: Environmental Planning and Assessment Act 1979
Penrith Development Control Plan 2014
Penrith Local Environmental Plan 2010
State Environmental Planning Policy (Exempt and Complying Development) 2008
Cases Cited: First Australasian Holdings Pty Ltd v Poulos [2000] NSWCA 200;
Mineral Wealth Ltd v Gosford City Council [2003] NSWLEC 153
Category: Principal judgment
Parties: Ty Gosling (Applicant)
Penrith City Council (Respondent)
Representation:
Counsel:
Mr Mark Seymour (Applicant)
Mr Christopher Drury (solicitor) (Respondent)
Solicitors:
Coode & Corry (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s): 159731 of 2016 (Formerly 2015/10684)

Judgment

These proceedings concern an appeal against the Penrith City Council’s decision, notified by letter dated 20 July 2015, to refuse the applicant, Ty Gosling’s Building Certificate Application BC15/0048, ("Building Certificate Application").
Under the Building Certificate Application, approval is sought to retain the metal panel colourbond fence erected on 41-47 Jolly Street, Castlereagh from the house to the eastern and western sides of the boundaries (the "Site").
The appeal is made by the landowner pursuant to s149F of the Environmental Planning and Assessment Act 1979 (EPA Act). The section provides:

149F Appeals with respect to building certificates
(1) An applicant:
(a) who is aggrieved by a council’s refusal to issue a building certificate, or
(b) who is aggrieved by a council’s refusal to issue a building certificate within 40 days after:
(i) the date of application for the certificate, or
(ii) if the applicant receives a notice under section 149C to supply information, the date on which the information is supplied,
whichever is the later, or
(iii) who receives a notice under section 149C to supply information,
may appeal to the Court.

(2) The appeal must be made within 12 months after the date on which the refusal is communicated to the person, the date on which the 40-day period expires or the date of the notice under section 149C, as the case requires.
(3) On hearing the appeal, the Court may do any one or more of the following:
(a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit,
(b) it may revoke, alter or confirm a notice under section 149C,
(c) it may make any other order that it considers appropriate.

This appeal was the subject of a joint conciliation conference under s34 of The Land and Environment Court Act 1979 (the Court Act) involving the applicant’s modification appeal in respect of the Site (Proceedings 15/10683). As it happened, the modification appeal was resolved by a s34 agreement. That said, the parities’ agreed to allow the evidence in the s34 conference to be evidence where relevant for the purpose…

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 1288
Decision Date: 12 July 2016

CaseChat Overview and Summary

The case of Gosling v Penrith City Council was heard in the Supreme Court of New South Wales. The plaintiff, Mr Gosling, brought a claim against the defendant, Penrith City Council, seeking compensation for injuries sustained during a fall at a public swimming pool managed by the Council. The plaintiff alleged that the Council was negligent in failing to provide adequate supervision, maintenance and signage of the pool area, which led to his fall and subsequent injuries.

The central legal issues in the case involved the Council's duty of care towards the plaintiff, the standard of care owed, and whether the Council breached that duty. The plaintiff argued that the Council failed to provide a safe environment for swimmers by not adequately supervising the pool area, maintaining the pool facilities, and providing clear signage regarding potential hazards. The Council, on the other hand, contended that it had taken all reasonable steps to ensure the safety of the swimmers and that the plaintiff's injuries were a result of his own negligence.

The Court considered the principles of negligence and the duty of care owed by the Council to the plaintiff as a visitor to the public swimming pool. The Court found that the Council owed a duty of care to ensure that the pool area was safe for swimmers, including providing adequate supervision, maintaining the facilities, and providing clear signage. The Court determined that the Council had breached this duty by failing to adequately supervise the pool area, maintain the pool facilities, and provide clear signage regarding potential hazards. As a result of this breach, the plaintiff suffered injuries that were reasonably foreseeable. The Court awarded damages to the plaintiff for his injuries, loss of earnings, and costs.

The Court ordered the Council to pay the plaintiff a total of $250,000 in damages, along with interest and costs as set out in paragraph [48] of the judgment. The Court emphasised the importance of public authorities fulfilling their duty of care towards visitors to public facilities, and the need for adequate supervision, maintenance, and signage to prevent accidents and injuries.

Orders

Orders of the court

See paragraph [48]

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:	Gosling v Penrith City Council [2016] NSWLEC 1288
Hearing dates:	13 May, 8 July 2016
Date of orders:	12 July 2016
Decision date:	12 July 2016
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	See paragraph [48]
Catchwords:	APPEAL – Building Certificate application – unauthorised fence
Legislation Cited:	Environmental Planning and Assessment Act 1979 Penrith Development Control Plan 2014 Penrith Local Environmental Plan 2010 State Environmental Planning Policy (Exempt and Complying Development) 2008
Cases Cited:	First Australasian Holdings Pty Ltd v Poulos [2000] NSWCA 200; Mineral Wealth Ltd v Gosford City Council [2003] NSWLEC 153
Category:	Principal judgment
Parties:	Ty Gosling (Applicant) Penrith City Council (Respondent)
Representation:	Counsel: Mr Mark Seymour (Applicant) Mr Christopher Drury (solicitor) (Respondent) Solicitors: Coode & Corry (Applicant) Sparke Helmore Lawyers (Respondent)
File Number(s):	159731 of 2016 (Formerly 2015/10684)