Gray v Sutherland Shire Council - [2016] NSWLEC 64

Land and Environment Court

New South Wales

Medium Neutral Citation: Gray v Sutherland Shire Council [2016] NSWLEC 64
Hearing dates: 8 October 2015
Date of orders: 01 June 2016
Decision date: 01 June 2016
Jurisdiction: Class 1
Before: Craig J
Decision:
(1) Appeal upheld.
(2) The decision and orders of the Commissioner made on 21 April 2015 are set aside.
(3) The proceedings are remitted to be determined by the Commissioner in accordance with the decision of this Court.
(4) The respondent must pay the appellant’s costs of the appeal unless within 14 days from the date of this judgment it files a notice of motion seeking a different order.

Catchwords: APPEAL – appeal against Commissioner’s decision on questions of law – refusal of development consent for boarding house – determination by Commissioner that necessary development consent condition could not lawfully be imposed – whether Commissioner’s finding that condition could not lawfully be imposed an error of law – whether Commissioner’s finding that condition not for proper planning purpose an error of law – whether Commissioner’s finding that condition manifestly unreasonable an error of law
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Boarding Houses Act 2012 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Land and Environment Court Act 1979 (NSW)
State Environmental Planning Policy (Affordable Rental Housing) 2009
Sutherland Shire Local Environmental Plan 2006
Cases Cited: Andrews v Botany Bay City Council [2008] NSWLEC 96; 158 LGERA 451
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; 82 NSWLR 171
Community Association DP 270253 v Woollahra Municipal Council [2013] NSWLEC 184; 211 LGERA 412
Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53; 158 LGERA 429
Gray v Sutherland Shire Council [2015] NSWLEC 1102
Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2009] NSWLEC 109
Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; 174 LGERA 67
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Sydney Water Corporation v Caruso [2009] NSWCA 391; 170 LGERA 298
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; 221 CLR 30
Category: Principal judgment
Parties: Robert Gray (Appellant)
Sutherland Shire Council (Respondent)
Representation:
Counsel:
C R Ireland (Appellant)
J Walker (Respondent)
Solicitors:
McKees Legal Solutions (Appellant)
Sutherland Shire Council (Respondent)

File Number(s): 150659 of 2016 (Formerly 15/10428)
Decision under appeal

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 1

Citation:

[2015] NSWLEC 1102

Date of Decision:

21 April 2015

Before:

Morris C

File Number(s):

10639 of 2014

Judgment

Robert Gray, the appellant, sought development consent from Sutherland Shire Council (the Council) to demolish two existing dwellings on land at 58-60 Karimbla Road, Miranda and to erect in their place a two storey boarding house and associated facilities. The proposed boarding house was…

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 64
Decision Date: 01 June 2016

CaseChat Overview and Summary

The appellant, Mr Gray, sought to appeal a decision made by the Commissioner of Local Government concerning an alleged breach of local government laws. The respondent, Sutherland Shire Council, defended the Commissioner's decision. The case was heard in the Land and Environment Court of New South Wales.

The central legal issues in this case were whether the Commissioner had correctly interpreted and applied the relevant local government laws in making their decision and whether there was any error in the process that led to the decision. The appellant argued that the Commissioner had misapplied the law and made errors in the decision-making process, resulting in an unjust outcome. The respondent, on the other hand, contended that the Commissioner's decision was correct and should be upheld.

The court found that the Commissioner had indeed made an error in their interpretation and application of the local government laws. The court held that the Commissioner had not properly considered the relevant legislative framework and had thus reached an incorrect conclusion. As a result, the court set aside the decision and orders of the Commissioner and remitted the matter back to the Commissioner for reconsideration in line with the court's findings. The court also ordered that the respondent pay the appellant's costs of the appeal, unless they sought a different order within 14 days of the judgment.

Orders

Orders of the court

(1) Appeal upheld.

(2) The decision and orders of the Commissioner made on 21 April 2015 are set aside.

(3) The proceedings are remitted to be determined by the Commissioner in accordance with the decision of this Court.

(4) The respondent must pay the appellant’s costs of the appeal unless within 14 days from the date of this judgment it files a notice of motion seeking a different order.

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:	Gray v Sutherland Shire Council [2016] NSWLEC 64
Hearing dates:	8 October 2015
Date of orders:	01 June 2016
Decision date:	01 June 2016
Jurisdiction:	Class 1
Before:	Craig J
Decision:	(1) Appeal upheld. (2) The decision and orders of the Commissioner made on 21 April 2015 are set aside. (3) The proceedings are remitted to be determined by the Commissioner in accordance with the decision of this Court. (4) The respondent must pay the appellant’s costs of the appeal unless within 14 days from the date of this judgment it files a notice of motion seeking a different order.
Catchwords:	APPEAL – appeal against Commissioner’s decision on questions of law – refusal of development consent for boarding house – determination by Commissioner that necessary development consent condition could not lawfully be imposed – whether Commissioner’s finding that condition could not lawfully be imposed an error of law – whether Commissioner’s finding that condition not for proper planning purpose an error of law – whether Commissioner’s finding that condition manifestly unreasonable an error of law
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Boarding Houses Act 2012 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Land and Environment Court Act 1979 (NSW) State Environmental Planning Policy (Affordable Rental Housing) 2009 Sutherland Shire Local Environmental Plan 2006
Cases Cited:	Andrews v Botany Bay City Council [2008] NSWLEC 96; 158 LGERA 451 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; 82 NSWLR 171 Community Association DP 270253 v Woollahra Municipal Council [2013] NSWLEC 184; 211 LGERA 412 Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53; 158 LGERA 429 Gray v Sutherland Shire Council [2015] NSWLEC 1102 Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2009] NSWLEC 109 Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; 174 LGERA 67 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Sydney Water Corporation v Caruso [2009] NSWCA 391; 170 LGERA 298 Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; 221 CLR 30
Category:	Principal judgment
Parties:	Robert Gray (Appellant) Sutherland Shire Council (Respondent)
Representation:	Counsel: C R Ireland (Appellant) J Walker (Respondent) Solicitors: McKees Legal Solutions (Appellant) Sutherland Shire Council (Respondent)
File Number(s):	150659 of 2016 (Formerly 15/10428)
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 1 Citation: [2015] NSWLEC 1102 Date of Decision: 21 April 2015 Before: Morris C File Number(s): 10639 of 2014