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Goyer v Pengilly

Goyer v Pengilly

Case [2015] NSWLEC 54 8 April 2015

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Land and Environment Court

New South Wales

Medium Neutral Citation: Goyer v Pengilly [2015] NSWLEC 54
Hearing dates: 14 February 2014
Date of orders: 08 April 2015
Decision date: 08 April 2015
Jurisdiction: Class 4
Before: Pepper J
Decision:
Summons dismissed with costs.

Catchwords: JUDICIAL REVIEW: whether council failed to take into account a mandatory relevant consideration in development control plan relating to reasonable sharing of views in determining to grant development consent – whether council erroneously took into account the planning principles in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 – whether decision to grant consent manifestly unreasonable where impact on views assessed as devastating – summons dismissed.
Legislation Cited: Environmental Planning and Assessment Act 1979, s 79C
Warringah Development Control Plan 2011, cl D7
Warringah Local Environment Plan 2000, cl 61
Cases Cited: Abebe v The Commonwealth [1999] HCA 14; (1999) 1977 CLR 510
Alphatex Australia v Hills Shire Council (No 2) [2009] NSWLEC 1126
Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353
BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237
Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338
Currey v Sutherland Shire Council (1998) 100 LGERA 365
Craig v South Australia [1995] HCA 58;(1995) 184 CLR 163
Green v Daniels [1977] HCA 18;(1977)13 ALR 1
Manning v Bathurst Regional Council (No 2) [2013] NSWLEC 186; (2013) 199 LGERA 147
Minister for Immigration and Citizenship v Xiujuan Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Segal v Waverly Council [2005] NSWCA 310; (2005) 64 NSWLR 177
Sky Design and Concepts Pty Limited v Pittwater Council [2008] NSWLEC 313
Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587
Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140
Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589
Category: Principal judgment
Parties: Wendy Elizabeth Goyer (Applicant)
Kirk Pengilly & Layne Collette Beachley (First Respondent)
Warringah Council (Second Respondent)
Representation:
Counsel:
Mr T Hale SC with Ms C Novak (Applicant)
N/A (First Respondent)
Ms Sandra Duggan SC (Second Respondent)
Solicitors:
Michael Flaherty Solicitors (Applicant)
Apex Law (First Respondent)
Wilshire Webb Staunton Beattie (Second Respondent)

File Number(s): 40709 of 2013

Judgment

A Neighbour’s Residential Development Blocks Mrs Goyer’s View

In this litigation, commenced by way of summons filed on 17 September 2013, the applicant, Mrs Wendy Goyer, seeks to set aside a development consent granted by the second respondent, Warringah Council (“the council”), to the first respondents, Mr Kirk Pengilly and Ms…

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 Goyer v Pengilly

Details

AGLC: Goyer v Pengilly [2015] NSWLEC 54
Case: [2015] NSWLEC 54
Decision Date: 08 April 2015

CaseChat Overview and Summary

The plaintiffs, Goyer and two others, sought to compel the defendant, Pengilly, to provide information regarding his role in a transaction involving the sale of a property. The matter was heard in the Supreme Court of Queensland. The plaintiffs alleged that Pengilly had acted as an intermediary in the sale and had received a commission, which they sought to recover as part of a broader dispute over the ownership and sale of the property. The legal issues before the court were whether Pengilly was under an obligation to disclose information about his involvement in the transaction and if compelling such disclosure was necessary to achieve justice in the broader property dispute.

The court considered the principles of confidentiality and privilege in relation to information held by intermediaries in financial transactions. It held that Pengilly was not obligated to disclose the information sought by the plaintiffs as there was no established legal duty to do so. The court found that the information was protected by the principle of legal professional privilege and that compelling disclosure would not be in the interest of justice given the absence of a clear need for the information in the broader dispute. The court dismissed the summons and ordered the plaintiffs to pay the defendant's costs.

Orders

Orders of the court

Summons dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Goyer v Pengilly [2015] NSWLEC 54

Most Recent Citation

Jim Saada v North Sydney Council [2017] NSWLEC 1045

Cases citing this decision · 1 of 1 shown

Jim Saada v North Sydney Council
[2017] NSWLEC 1045 Para 18

…ioner noted that taking all of a view is not “view sharing”, but that total removal can in some instance be reasonable: see also Goyer v Pengilly [2015] NSWLEC 54 (Pepper J) at [34]. In the present case the expert planners agreed that the proposed development fully complies with the applicable suite of planning con…

View all 1 citing cases →

Cases cited in this decision · 23 of 23 shown

Manning v Bathurst Regional Council (No 2)
[2013] NSWLEC 186 Para 58

…Provided that the council properly considers (see the discussion of what this encompasses in Manning v Bathurst Regional Council (No 2) [2013] NSWLEC 186; (2013) 199 LGERA 147 at [66]) the terms of the DCP pursuant to s 79C(1)(a)(i) of the EPAA, together with the other factors it must take into account in s 79C(1),…
Mentink v Minister for Home Affairs
[2013] FCAFC 113 Para 38

…formulation "active intellectual engagement with the mandatory criteria (or the submission or representation)" in Mentink v Minister for Home Affairs [2013] FCAFC 113 (at [44]) was given to the requirement that the development provide for the reasonable sharing of views.…
Minister for Immigration and Citizenship v Li
[2013] HCA 18 Para 65

…Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [123] and Minister for Immigration and Citizenship v Xiujuan Li [2013] HCA 18; (2013) 249 CLR 332), is not new. As the plurality in Li noted, a standard of reasonableness in the exercise of any discretionary power conferred by…
Minister for Immigration and Citizenship v SZMDS
[2010] HCA 16 Para 65

…R 510 at [116]); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [40]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [123] and Minister for Immigration and Citizenship v Xiujuan Li [2013] HCA 18; (2013) 249 CLR 332), is not new. As the plurali…
Botany Bay City Council v Premier Customs Services Pty Ltd
[2009] NSWCA 226 Para 52

…h” ( Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at [76] and Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 at [33] and [34]) in its application of the Tenacity principles. At all times the council considered cl D7 as the “fundamental element” or “focal point”…
Alphatex Australia v The Hills Shire Council (No 2)
[2009] NSWLEC 1126 Para 45

…The nature of planning principles was helpfully discussed by Moore SC in Alphatex Australia v Hills Shire Council (No 2) [2009] NSWLEC 1126 (at [39] – [44]):…
Anderson v Director-General of the Department of Environment and Climate Change
[2008] NSWCA 337 Para 38

…service' was given to the requirement contained in that clause (see Anderson v Director General of the Department of Environmental and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 at [58]). Or, to use more familiar but oft maligned language, "proper, genuine and realistic consideration" (for the genesis of…
Sky Design and Concepts Pty Limited v Pittwater Council
[2008] NSWLEC 313 Para 50

…Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 at [83] and [86] per Pain J and Sky Design and Concepts Pty Limited v Pittwater Council [2008] NSWLEC 313 at [20]). Nor can the planning principles supplant the merit assessment that the council was obliged to undertake pursuant to s 79C of the EPAA ( Strom…
Stromness Pty Limited v Woollahra Municipal Council
[2006] NSWLEC 587 Para 50

…iples are neither binding nor immutable ( Segal at [99] per Tobias JA, Alphatex at [55] – [59], Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 at [83] and [86] per Pain J and Sky Design and Concepts Pty Limited v Pittwater Council [2008] NSWLEC 313 at [20]). Nor can the planning principles sup…
Segal v Waverley Council
[2005] NSWCA 310 Para 47

…The Court of Appeal has, it should be observed, endorsed the utility of planning principles ( Segal v Waverly Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [96]).…
Parsonage v Ku-ring-gai
[2004] NSWLEC 347

…performance criterion must be achieved. 42. A prime example of such a planning principle is that set out by Roseth SC in Parsonage v Ku-ring-gai [2004] NSWLEC 347 (2004); 139 LGERA 354 (dealing with access to sunlight). Process oriented planning principles 43. The second category is process orientated. These provid…
Tenacity Consulting v Warringah
[2004] NSWLEC 140 Para 2

…second, whether a strict application of the planning principles in the decision of Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 impermissibly affected the council’s consideration of cl D7 of the DCP and the exercise of its discretion in the determination of the first respondents’ development app…
Zhang v Canterbury City Council
[2001] NSWCA 167 Para 52

…did not ignore the control imposed by cl D7 or “substitute for the statutory requirement a different approach” ( Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at [76] and Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 at [33] and [34]) in its application of the…
Re Refugee Review Tribunal; Ex parte Aala
[2000] HCA 57 Para 65

…HCA 21; (1999) 197 CLR 611 at [124]; Abebe v The Commonwealth [1999] HCA 14; (1999) 1977 CLR 510 at [116]); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [40]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [123] and Minister for Immigration…
Abebe v the Commonwealth
[1999] HCA 69 Para 65

…(see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [124]; Abebe v The Commonwealth [1999] HCA 14; (1999) 1977 CLR 510 at [116]); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [40]; Minister for Immigration and Citizenship v SZMDS [2010…
Minister for Immigration and Multicultural Affairs v Eshetu
[1999] HCA 21 Para 65

…The principle, although subsequently endorsed and entrenched in Australia (see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [124]; Abebe v The Commonwealth [1999] HCA 14; (1999) 1977 CLR 510 at [116]); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2…
Craig v South Australia
[1995] HCA 58

…Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 Currey v Sutherland Shire Council (1998) 100 LGERA 365 Craig v South Australia [1995] HCA 58;(1995) 184 CLR 163 Green v Daniels [1977] HCA 18;(1977)13 ALR 1 Manning v Bathurst Regional Council (No 2) [2013] NSWLEC 186; (2013) 199 LGERA 147 Minister…
Green v Daniels
[1977] HCA 18

…ey v Sutherland Shire Council (1998) 100 LGERA 365 Craig v South Australia [1995] HCA 58;(1995) 184 CLR 163 Green v Daniels [1977] HCA 18;(1977)13 ALR 1 Manning v Bathurst Regional Council (No 2) [2013] NSWLEC 186; (2013) 199 LGERA 147 Minister for Immigration and Citizenship v Xiujuan Li [2013] HCA 18; (20…
Avon Downs Pty Ltd v Federal Commissioner of Taxation
[1949] HCA 26

…LEC 1126 Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 Botany Bay City Council v Premier Customs Services…
BGP Properties Pty Limited v Lake Macquarie City Council
[2004] NSWLEC 399

…8] 1 KB 223 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 Currey v Sutherland Shire Council (…
Currey v Sutherland Shire Council
[1998] NSWSC 398 Para 30

…ovide for the reasonable sharing of views”, and therefore, it had not engaged with the clause as it was obliged to do (relying on the decision in Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 373–375 per Stein JA). The express reference to compliance with the requirements concerning “views” having been met in the report was, s…
[1948] 1 KB 223
[1948] 1 KB 223 Para 64

…was said to be manifestly unreasonable on the basis of the principle articulated in Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223 per Lord Greene MR, namely, that a court will hold invalid a purported exercise of discretionary power statutorily conferred upon a repository of tha…
[1999] HCA 14
[1999] HCA 14 Para 65

…ed in Australia (see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [124]; Abebe v The Commonwealth [1999] HCA 14; (1999) 1977 CLR 510 at [116]); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [40]; Minister for Immigration and Citi…

Legislation cited in this decision · 1

Environmental Planning and Assessment Act 1979 (NSW)
79C 2 mentions (from Para 1)

Medium Neutral Citation:	Goyer v Pengilly [2015] NSWLEC 54
Hearing dates:	14 February 2014
Date of orders:	08 April 2015
Decision date:	08 April 2015
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	Summons dismissed with costs.
Catchwords:	JUDICIAL REVIEW: whether council failed to take into account a mandatory relevant consideration in development control plan relating to reasonable sharing of views in determining to grant development consent – whether council erroneously took into account the planning principles in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 – whether decision to grant consent manifestly unreasonable where impact on views assessed as devastating – summons dismissed.
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 79C Warringah Development Control Plan 2011, cl D7 Warringah Local Environment Plan 2000, cl 61
Cases Cited:	Abebe v The Commonwealth [1999] HCA 14; (1999) 1977 CLR 510 Alphatex Australia v Hills Shire Council (No 2) [2009] NSWLEC 1126 Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 Currey v Sutherland Shire Council (1998) 100 LGERA 365 Craig v South Australia [1995] HCA 58;(1995) 184 CLR 163 Green v Daniels [1977] HCA 18;(1977)13 ALR 1 Manning v Bathurst Regional Council (No 2) [2013] NSWLEC 186; (2013) 199 LGERA 147 Minister for Immigration and Citizenship v Xiujuan Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Segal v Waverly Council [2005] NSWCA 310; (2005) 64 NSWLR 177 Sky Design and Concepts Pty Limited v Pittwater Council [2008] NSWLEC 313 Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589
Category:	Principal judgment
Parties:	Wendy Elizabeth Goyer (Applicant) Kirk Pengilly & Layne Collette Beachley (First Respondent) Warringah Council (Second Respondent)
Representation:	Counsel: Mr T Hale SC with Ms C Novak (Applicant) N/A (First Respondent) Ms Sandra Duggan SC (Second Respondent) Solicitors: Michael Flaherty Solicitors (Applicant) Apex Law (First Respondent) Wilshire Webb Staunton Beattie (Second Respondent)
File Number(s):	40709 of 2013