Lahoud v Willoughby City Council - [2024] NSWCA 163

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
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2024] HCA 12
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:
T Robertson SC and N Wootton (Appellant)
A Galasso SC and H Grace (Second Respondent)
Solicitors:
McLachlan Thorpe Partners (Appellant)
Lindsay Taylor Lawyers (First Respondent)
Mills Oakley (Second Respondent)

File Number(s): 2023/00426490
Publication restriction:

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: [2024] NSWCA 163
Decision Date: 10 July 2024

CaseChat Overview and Summary

Lahoud (the appellant) sought judicial review of a development consent granted by Willoughby City Council (the first respondent) for the adaptive reuse of a commercial building. The consent was challenged on several grounds, including that the building exceeded the height standard, that the consent authority was not satisfied of clause 4.6 of the Willoughby Local Environment Plan 2012, that the building lacked an active street frontage, that the development was not for a permissible use of shop-top housing, and that the consent authority failed to consider if the land was contaminated. The proceedings were also subject to a limitation of actions defence, with the Council arguing the proceedings were time-barred due to the three-month time limit for challenging development consents after public notice.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2024] HCA 12 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: T Robertson SC and N Wootton (Appellant) A Galasso SC and H Grace (Second Respondent) Solicitors: McLachlan Thorpe Partners (Appellant) Lindsay Taylor Lawyers (First Respondent) Mills Oakley (Second Respondent)
File Number(s):	2023/00426490
Publication restriction: