Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Lahoud v Willoughby City Council [2024] NSWCA 163 Hearing dates: 30 May 2024 Date of orders: 10 July 2024 Decision date: 10 July 2024 Before: Meagher JA at [1];
Leeming JA at [2];
Preston CJ of LEC at [3]Decision: (1) The appeal is dismissed.
(2) Contentions 2, 3 and 4 of the second respondent’s notice of contention are upheld.
(3) Order 3 of the orders of Moore J made on 2 November 2023 is set aside.
(4) In lieu of order 3 of Moore J, the appellant as applicant is to pay the second respondent’s costs of the proceedings in the Land and Environment Court.
(5) The appellant is to pay the second respondent’s costs of the proceedings in this court.
Catchwords: ENVIRONMENT AND PLANNING – Development consent for the adaptive reuse of existing commercial building – judicial review – building exceeds height standard – whether consent authority satisfied of cl 4.6 of Willoughby Local Environment Plan 2012 before granting development consent – whether consent authority satisfied building had active street frontage – whether development for permissible use of shop top housing – whether consent authority failed to consider if land is contaminated
LIMITATION OF ACTIONS – Whether proceedings time-barred – time limit of three months after public notice in accordance with regulations published – earlier notifications not notices in accordance with regulations
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.8, 4.16, 4.17, 4.59, 9.1, 9.46
Land and Environment Court Act 1979 (NSW), ss 25B, 58
Environmental Planning and Assessment Regulation 2000 (NSW), cl 124
State Environmental Planning Policy 55 – Remediation of Land, cl 7
Willoughby Local Environmental Plan 2012, cll 4.3, 4.6, 6.7, Dictionary
Cases Cited: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67
Arco Iris Trading Pty Ltd v North Sydney Council [2015] NSWLEC 1113
Australian Gas LightCo v Valuer-General (1940) 40 SR (NSW) 126
Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114
El Khouri v Gemaveld Pty Ltd (2023) 256 LGERA 24; [2023] NSWCA 78
Fordham v Environment Protection Agency [2018] NSWCA 167
Hope v Bathurst City Council (1980) 144 CLR 1
Lahoud v Willoughby City Council [2022] NSWLEC 125
Lahoud v Willoughby City Council [2022] NSWCA 214
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509
Parramatta City Council v Hale (1982) 47 LGRA 319
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422
Category: Principal judgment Parties: Victor Lahoud (Appellant)
Willoughby City Council (First Respondent)
Helm Pty Ltd (ACN 142 328 309) (Second Respondent)Representation: Counsel:
Solicitors:
T Robertson SC and N Wootton (Appellant)
A Galasso SC and H Grace (Second Respondent)
McLachlan Thorpe Partners (Appellant)
Lindsay Taylor Lawyers (First Respondent)
Mills Oakley (Second Respondent)
File Number(s): 2023/00426490 Publication restriction:
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- Case
- [2024] NSWCA 163
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the consent authority had properly considered and satisfied the requirements of clause 4.6 of the Willoughby Local Environment Plan 2012 concerning the height non-compliance, whether the development met the criteria for active street frontage, whether the proposed use was permissible, and whether the issue of land contamination had been adequately addressed. Additionally, the court had to determine if the appellant's proceedings were initiated within the statutory time limit, considering the adequacy of the public notification of the development consent.
The court found that the consent authority had adequately considered and was satisfied of clause 4.6 of the Willoughby Local Environment Plan 2012, and that the development did possess an active street frontage. Furthermore, the court determined that the proposed use was permissible and that the consent authority had not failed to consider the potential for land contamination. Crucially, the court upheld the contention that the proceedings were time-barred, finding that the earlier notifications were not sufficient to trigger the commencement of the three-month limitation period.
Consequently, the appeal was dismissed. The court upheld contentions 2, 3, and 4 of the second respondent’s notice of contention, setting aside an earlier order and ordering that the appellant pay the second respondent’s costs of the proceedings in both the Land and Environment Court and the appellate court.
Orders
Orders of the court
(1) The appeal is dismissed.
(2) Contentions 2, 3 and 4 of the second respondent’s notice of contention are upheld.
(3) Order 3 of the orders of Moore J made on 2 November 2023 is set aside.
(4) In lieu of order 3 of Moore J, the appellant as applicant is to pay the second respondent’s costs of the proceedings in the Land and Environment Court.
(5) The appellant is to pay the second respondent’s costs of the proceedings in this court.
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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