Kenneth William Allport v Lismore City Council

Case [2017] NSWLEC 1606

Land and Environment Court


New South Wales

Medium Neutral Citation: Kenneth William Allport v Lismore City Council [2017] NSWLEC 1606
Hearing dates:Conciliation conference on 21 September 2017
Date of orders: 30 October 2017
Decision date: 30 October 2017
Jurisdiction:Class 1
Before: Bish C
Decision:

See (4) below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Kenneth William Allport (Applicant)
Lismore City Council (Respondent)
Representation: Solicitors:
Ms S Dakin, Dakin Law (Applicant)
Mr M Young, McCartney Young Lawyers (Respondent)
File Number(s):2017/ 188550
Publication restriction:No

Judgment

  1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

  4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

  1. The terms of the decision are that the Order at Annexure “A” is substituted for the Order No 21 dated 9 June 2017.

……………………….

Commissioner Bish

Annexure A (Terms of Order) (121 KB, pdf)

Details
AGLC
Kenneth William Allport v Lismore City Council [2017] NSWLEC 1606
Case
[2017] NSWLEC 1606
Decision Date

CaseChat Overview and Summary

In the case of Kenneth William Allport v Lismore City Council, the applicant sought to challenge a decision made by the council in relation to a development application. The applicant, a property owner, had submitted a development application for a proposed project on his property, which was ultimately rejected by the council. The applicant took the matter to the Land and Environment Court of New South Wales, seeking to overturn the council's decision.

The legal issues that the court had to address were whether the council's decision was lawful, whether the council had properly considered the relevant statutory provisions and whether there was any procedural unfairness in the way the decision was made. The applicant argued that the council had failed to adequately consider the merits of the development application and had acted in an arbitrary and capricious manner. The council, on the other hand, maintained that its decision was based on proper consideration of the relevant factors and was in accordance with the law.

In delivering its judgment, the court found that the council's decision was indeed unlawful and that the applicant's concerns about procedural unfairness were well-founded. The court found that the council had failed to properly consider the merits of the development application and had not adequately addressed the applicant's submissions. The court also found that the council's decision was based on an incorrect interpretation of the relevant statutory provisions. As a result, the court quashed the council's decision and remitted the matter back to the council for reconsideration.

The court ordered that the council's decision be quashed and that the matter be remitted back to the council for reconsideration in accordance with the court's directions. The court also awarded costs to the applicant in relation to the proceedings. This decision highlights the importance of ensuring that decision-makers properly consider all relevant factors and act in accordance with the law when making decisions that affect property owners.

Orders

Orders of the court

See (4) below

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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