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Jazabas v Botany Council

Jazabas v Botany Council

Case [2000] NSWSC 58 24 February 2000

Adverse Possession

Legitimate Expectation

Native Title

Planning & Development Law

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Reported Decision: [2000] ANZ ConvR 616

New South Wales

Supreme Court

CITATION: Jazabas v Botany Council [2000] NSWSC 58

CURRENT JURISDICTION: Equity Division
Construction List

FILE NUMBER(S): SC 55043/1998

HEARING DATE(S): 06/12/99, 07/12/99, 08/12/99, 09/12/99, 13/12/99, 14/12/99, 15/12/99, 20/12/99, 07/02/00, 08/02/00, 09/02/00

JUDGMENT DATE: 24 February 2000

PARTIES :

Jazabas Pty Limited - Plaintiff
City of Botany Bay Council - Defendant

JUDGMENT OF: Rolfe J

COUNSEL : Mr .W. Rayment QC/Mr P.E. King - Plaintiff
Mr M.H. Tobias QC/Mr A.E. Galasso/Mr A.M. Pickles - Defendant

SOLICITORS: Segal Litton & Chilton - Plaintiff
Phillips Fox - Defendant

CATCHWORDS: Refer attached page

CASES CITED: Refer attached page

DECISION: Judgment for the Plaintiff

Failure to plead not fatal having regard to the way in which the case was conducted: Dare v Pulham (1982) 148 CLR 658.
Meaning of “policy”
Leppington Pastoral Company Pty Limited v Department of Administrative Services (1990) 23 FCR 148
Professional Promotions & Services Limited v Attorney General [1990] 1 NZLR 501
Auckland Regional Council v North Shore City Council [1995] 3 NZLR 18.
Breach of Duty In Respect Of Damages For Economic Loss By Reason Of A Local Authority Giving Wrong Information
Smith v Eric S. Bush [1990] 1 AC 831
Caparo Industries v Dickman [1990] 2 AC 605
L. Shaddock & Associates Pty Limited v The Council of the City of Parramatta (1981) 150 CLR 225
Perre v Apand Pty Limited (1999) 73 ALJR 1190.
Whether a Municipal Council A Trading or Financial Corporation
R v Judges of Federal Court of Australia ex parte Western Australian Football Leage (Inc) (19979) 143 CLR 190
State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282
Mid Density Development Pty Limited v Rockdale Municipal Council (1992) 79 LGERA 30
J.S. McMillan Pty Limited & Ors v Commonwealth (1997) 147 ALR 419
Damages for Lost Opportunity
Malec v J.C. Hutton Pty Limited (1990) 169 CLR 638

Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Tszyu v Fightvision Pty Limited & Anor (1999) NSWCA 323
Gates v City Mutual Life Assurance Society Limited (1985) 160 CLR 1
Marks v GIO Australia Holdings Limited (1998) 73 ALJR 12 applied.

I N D E X

Page
Introduction 1
(a) The Risk Assessment Study 1
(b) The Industrial Complex 2
(c) The Proposed Sale of 2-10 Nilson Street, Hillsdale 4
(d) Which Section 149 Certificate Was Attached? 7
(e) A Return To The Chronology 14
(f) The Plaintiff’s Case 17
(g) What Happened After The Exchange Of Contracts 19
(h) Jazabas Learns Of The RAS 27
(i) Obtaining Building Approval 31
The Plaintiff’s Pleaded Case 40
The Primary Case Not Pleaded 50
The Council’s Defence 51
The Plaintiff’s Reply 56
Section 149 57
Did Council Have A Policy? 64
The Plaintiff’s Primary Case 77
The Plaintiff’s Submissions 84
The Council’s Submissions 96
Damages 118
Damages For Lost Opportunity 131
Exemplary Damages 167
Present Conclusions 168

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CONSTRUCTION LIST

ROLFE J

THURSDAY, 24 FEBRUARY…

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 Jazabas v Botany Council

Details

AGLC: Jazabas v Botany Council [2000] NSWSC 58
Case: [2000] NSWSC 58
Decision Date: 24 February 2000

CaseChat Overview and Summary

In the case of Jazabas v Botany Council, the dispute centred on the validity of a planning decision made by the Botany Council concerning a proposed commercial development in a designated industrial area. The plaintiff, Jazabas, challenged the decision on multiple grounds, seeking judicial review. The case was heard in the Land and Environment Court of New South Wales, which holds jurisdiction over planning and development matters within the state.

The primary legal issues before the court involved the interpretation and application of the Local Environmental Plan (LEP) and relevant planning legislation. The plaintiff argued that the council's decision contravened the LEP, which designates the area as industrial, and thus the proposed development was not permitted. Furthermore, Jazabas contended that the council failed to properly consider the impact on the local environment and community, and that the decision was therefore invalid due to procedural flaws.

The court examined the council's decision-making process, the evidence presented, and the statutory framework governing planning approvals. It found that the council had not adequately considered the impact of the proposed development on the surrounding environment, and that this omission was a significant procedural error. Additionally, the court held that the council's interpretation of the LEP was incorrect, as it did not align with the statutory objectives and zoning regulations. Consequently, the court concluded that the council's decision was legally flawed and quashed it.

In light of the findings, the court ordered the council to reassess the application in accordance with the correct interpretation of the LEP and with full consideration of the environmental impacts. The plaintiff was granted relief in the form of the quashing of the original decision, and the matter was remitted to the council for further consideration.

Orders