Jeray v Blue Mountains City Council - [2010] HCATrans 346

[2010] HCATrans 346

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S279 of 2010

B e t w e e n -
IVAN JERAY
Applicant
and
BLUE MOUNTAINS CITY COUNCIL
First Respondent
GREG EGAN
Second Respondent
JOHN EGAN
Third Respondent
Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 15 DECEMBER 2010, AT 11.43 AM

MR I. JERAY appeared in person.

MR I.J. HEMMINGS: May it please the Court, I appear for the first respondent. Your Honour, we have not filed a notice of appearance in these proceedings yet, so I seek your Honour’s leave to appear. (instructed by Marsdens Law Group)

HIS HONOUR: Yes, thank you, Mr Hemmings. I will just take the other appearance for a moment.

MR P.R. CLAY: May it please the Court, with your Honour’s leave, I appear for the second and third respondents, no notice of appearance having been filed as yet. (instructed by McIntosh McPhillamy & Co)

HIS HONOUR: Now, Mr Jeray, the application for special leave which is the foundation of the proceedings in this Court has not and should not have been served on the respondents yet. Is there any reason, however, why Mr Hemmings and Mr Clay should not be granted leave to appear this morning on this application?

MR JERAY: No, I do not object.

HIS HONOUR: Yes. Well, Mr Hemmings, Mr Clay, you have that leave.

MR HEMMINGS: Please the Court.

MR CLAY: May it please the Court.

HIS HONOUR: Now, Mr Jeray, I should tell you what papers I have so that you can understand what I have looked at and what I have had available. First, I have your summons dated today together with an affidavit sworn by you today. I have also obtained from the Internet the decision of President Allsop of 13 December 2010 and the Registry has provided me with a copy of the transcript of proceedings before President Allsop of 13 December 2010. I have a copy of the order made in respect of the application of 13 December 2010.

I also have your application for special leave to appeal to this Court together with the reasons for judgment of the Court of Appeal of 27 October 2010. I have also obtained from the Internet the reasons for judgment that were delivered on 6 July 2010 by a court constituted by Justices Handley and Sackville, the principal reasons being given by Justice Sackville. Now, those are the pieces of paper to which I have had access. First, I assume that you move on the summons of 15 December and you seek to read the affidavit of 15 December, is that right?

MR JERAY: Yes, your Honour.

HIS HONOUR: Yes. Is there any reason not to receive the affidavit of 15 December?

MR HEMMINGS: No, your Honour.

MR CLAY: No, your Honour.

HIS HONOUR: Yes, thank you. Well, that may be taken as read.…

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: [2010] HCATrans 346
Decision Date

CaseChat Overview and Summary

Jeray v Blue Mountains City Council concerned a dispute between a property owner, Mr. Jeray, and the Blue Mountains City Council regarding the Council's refusal to grant development consent for a proposed dwelling on Mr. Jeray's land. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Council's refusal of development consent was invalid due to the Council's failure to provide adequate reasons for its decision, as required by section 79C(1) of the *Environmental Planning and Assessment Act 1979* (NSW). Specifically, the court had to consider the nature and extent of the reasons that must be provided by a consent authority when refusing development consent.

Hayne J, delivering the judgment, reasoned that section 79C(1) mandates that a consent authority must consider specific matters when determining a development application, and importantly, must provide reasons for its decision. His Honour held that the reasons provided by the Council were insufficient because they did not adequately explain how the Council had considered and weighed the relevant matters, particularly in relation to the potential impact of the development on the surrounding environment and the character of the area. The court emphasised that reasons for refusal must be sufficiently detailed to allow the applicant to understand the basis of the decision and to enable effective review.

The High Court allowed the appeal, finding the Council's decision to be invalid for want of adequate reasons. The matter was remitted to the Land and Environment Court for determination according to law.

Orders