Hortis v Manly Council - [1999] NSWLEC 151

Land and Environment Court

of New South Wales

CITATION:

Hortis v Manly Council & Anor [1999] NSWLEC 151

PARTIES

APPLICANT
Edison Hortis

FIRST RESPONDENT
Manly Council
SECOND RESPONDENT
Gregory R Mailman

NUMBER:

40188 of 1998

CORAM:

Sheahan J

KEY ISSUES:

Judicial Review :- bias, construction and interpretation, discretion, legitimate expectation, manifest unreasonableness, relevant/irrelevant considerations

LEGISLATION CITED:

Environmental Planning & Assessment Act 1979
Land & Environment Court Act 1979
Local Government Act 1993
Manly Local Environmental Plan 1988
Manly Development Control Plan for the Residential Zone 1986

DATES OF HEARING:

02/15/1999; 02/16/1999; 02/17/1999; 03/16/1999; 03/31/1999

DATE OF JUDGMENT DELIVERY:

07/02/1999

LEGAL REPRESENTATIVES:

APPLICANT
SOLICITORS
Mr N Hemmings QC of
Allen Allen & Hemsley
FIRST RESPONDENT
SOLICITORS
Mr P Jackson of Pike Pike &Fenwick
SECOND RESPONDENT
Mr A J J Thompson, Barrister
SOLICITORS
Mr J Doyle of Eakin McCaffery Cox

JUDGMENT:

Contents

HORTIS v MANLY COUNCIL & ANOR

Paragraphs

(1) The nature of these proceedings 1-9

(2) The parties and the subject site 10-13

(3) The development mailman is seeking 14-15

(4) The relief Hortis is seeking 16-18

(5) The Respondents’ position 19

(6) The relevant instruments 20

(7) Relevant provisions of the LEP 21-26

(8) Relevant provisions of the DCP 27-30

(9) Relevant conditions of approval 31

(10) What does Hortis allege? 32-35

(11) The challenges in detail

11.1 Challenge 1: Council’s administrative arrangements 36-39

11.2 Challenge 2: Lack of power to approve substantially the same development 40-60

11.3 Challenge 3: Earlier concerns not addressed 61-62

11.3.1 The Roseth judgment on Application 1 63-64

11.3.2 The Bull judgment on Application 2 65-76

11.3.3 Expert Opinion? 77-80

11.3.4 Hortis’s Contentions 81

11.3.5 Council’s Contentions 82-83

11.3.6 Mailman’s Contentions 84

11.3.7 Conclusion on Challenge 3 85-87

11.4 Challenge 4: Contraventions of the DCP 88-100

11.4.1 The sub-challenges in detail 100

11.4.2 Conclusion on Challenge 4 101-102

11.5 Challenge 5: Irrelevant matters considered 103-104

11.5.1 The sub-challenges in detail 104

11.5.2 Conclusion on Challenge 5 105

11.6 Challenge 6:

Inadequate consideration of relevant matters 106-109

11.6.1 The sub-challenges in detail 109

11.6.2 Conclusion on Challenge 6 110

11.7 Challenge 7: Deferment of Relevant Considerations 111-117

11.7.1 The sub-challenges in detail 117

11.7.2 Conclusion on Challenge 7 118

11.8 Challenge 8: Consideration of LEP Clauses 10 and 17 119-122

11.8.1 Currey’s case 123-147

11.8.2 Clifford’s case 148-153

11.8.3 Franklins’ case 154-160

11.8.4 The Relevant Question for the Court in this Challenge 161-163

11.8.5 Hortis’s submissions 164

11.8.6 Council’s submissions 165

11.8.7 Mailman’s position 166

11.8.8 Did Council consider the pre-conditions? 167-171

11.8.9 Conclusion on Challenge 8 172-173

11.9 Challenge 9: Unfairness 174-175

11.10 Challenge 10: Unreasonableness 176-179

(12) Should relief be granted - Discretion? 180-181

(13) Conclusion 182-183

(14) Orders 184

IN THE LAND AND Matter No: 40188 of 1998

ENVIRONMENT COURT Coram: Sheahan J

OF NEW SOUTH WALES 2 July 1999

EDISON HORTIS

Applicant

MANLY COUNCIL

First Respondent

GREGORY R MAILMAN

Second Respondent

JUDGMENT

(1) The nature of these proceedings

1. In this case Mr Edison Hortis launched a multi-pronged attack on Manly…

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: [1999] NSWLEC 151
Decision Date: 02/07/1999

CaseChat Overview and Summary

Hortis v Manly Council involved a challenge to the decision of Manly Council to grant development consent to Mailman for a property adjacent to Hortis's property. Hortis argued that the Council's decision was invalid on various grounds, including that the Council had failed to consider relevant planning provisions and had taken into account irrelevant matters. The Court considered whether the Council's decision was legally sound and whether it had complied with the relevant planning provisions. The Court held that the Council had failed to consider certain pre-conditions outlined in the Local Environment Plan, and as such, the consent granted was invalid. The Court also found that the Council's decision was not manifestly unreasonable and that Hortis was not entitled to relief on the grounds of unfairness or procedural unfairness. The Court declared the development consent, building approval, and modification to be void and of no effect, and reserved the question of costs.

Orders