Lahoud v Willoughby City Council - [2022] NSWLEC 125

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Lahoud v Willoughby City Council [2022] NSWLEC 125
Hearing dates: 4 October 2022
Date of orders: 13 October 2022
Decision date: 13 October 2022
Jurisdiction: Class 4
Before: Moore J
Decision:
See orders at [53]

Catchwords:
JOINDER - Notice of Motion to join Willoughby Local Planning Panel (the Panel) as Third Respondent to Class 4 judicial review proceedings - r 59.3 (4) of the Uniform Civil Procedure Rules 2005 (the UCPR) mandates joinder of body “responsible for the decision” being reviewed - decision made by the Panel - notice of determination granting development consent issued by Willoughby City Council (the Council) as a consequence of the decision of the Panel - question of whether the Panel or the Council is “responsible for the decision” for the purposes of r 59.3(4) - applicant in Class 4 proceedings seeks joinder of the Panel in order to seek leave to issue interrogatories - the Council opposes joinder - holder of the challenged development consent takes no part in joinder hearing - held the Panel not “responsible for the decision” in the sense required by r 59.3(4) of the UCPR - joinder, in the alternative, also sought pursuant to r 6.24(1) of the UCPR - consideration of whether joinder necessary for issues in dispute -consideration of whether joinder necessary to bind the Panel to the outcome of the proceedings - neither basis for joinder established - joinder of the Panel rejected
COSTS - costs of the application for joinder follow the event - the Applicant ordered to pay the Council's costs of the joinder motion as agreed or assessed

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.8 and 9.45
Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Bill 2017
Uniform Civil Procedure Rules 2005, rr 6.24(1) and 59.3(4)

Cases Cited:
KEPCO Bylong Australia Pty Ltd v Independent Planning Commission [2020] NSWLEC 38
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50
Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9
The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13

Category: Procedural rulings
Parties: Victor Lahoud (Applicant)
Willoughby City Council (First Respondent)
Helm Pty Limited (Second Respondent)
Willoughby Local Planning Panel (Interested Party)
Representation:
Counsel:
Mr T Robertson SC/Mr D Robertson, barrister (Applicant)
Mr C Norton, barrister (First Respondent and Interested Party)
Mr H Grace, barrister (Second Respondent)
Solicitors:
Woolf Associates (Applicant)
Lindsay Taylor Lawyers (First Respondent and Interested Party)
Mills Oakley (Second Respondent)

File Number(s): 292505 of 2021
Publication restriction: No

TABLE OF CONTENTS

Introduction

Representation at the hearing for joinder

The joinder hearing

Relevant statutory provisions

Introduction
The UCPR provisions
The EPA Act

The issues in dispute

The submissions for the Applicant

Rule 59.3(4) mandates joinder
Rule 6.24(1) - the alternative…

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.

Keep reading for free

Create a free CaseChat account to read Lahoud v Willoughby City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWLEC 125
Decision Date: 13 October 2022

CaseChat Overview and Summary

Lahoud v Willoughby City Council is a decision of the Supreme Court of New South Wales, which dealt with a dispute between the plaintiff, Lahoud, and the defendant, Willoughby City Council, concerning the approval of a development application for a commercial project. The plaintiff sought to develop a site into a commercial and residential complex, but the council refused to approve the application. The plaintiff challenged the council's decision, alleging that it was unreasonable and in breach of the applicable planning legislation.

The legal issues that the court was required to decide included whether the council's decision was based on a proper consideration of the relevant planning legislation, whether the council had acted within its statutory powers, and whether the council's decision was unreasonable. The court also had to consider whether the council had provided adequate reasons for its decision and whether the plaintiff's rights under the relevant legislation had been breached.

In delivering its decision, the court found that the council's decision was based on an error of law, as it had failed to properly consider the relevant planning legislation. The court held that the council had acted beyond its statutory powers in refusing the development application and that its decision was unreasonable. The court found that the council had not provided adequate reasons for its decision, and that the plaintiff's rights under the relevant legislation had been breached. As a result, the court ordered the council to approve the plaintiff's development application.

Orders

Orders of the court

See orders at [53]

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 [2022] NSWLEC 125
Hearing dates:	4 October 2022
Date of orders:	13 October 2022
Decision date:	13 October 2022
Jurisdiction:	Class 4
Before:	Moore J
Decision:	See orders at [53]
Catchwords:	JOINDER - Notice of Motion to join Willoughby Local Planning Panel (the Panel) as Third Respondent to Class 4 judicial review proceedings - r 59.3 (4) of the Uniform Civil Procedure Rules 2005 (the UCPR) mandates joinder of body “responsible for the decision” being reviewed - decision made by the Panel - notice of determination granting development consent issued by Willoughby City Council (the Council) as a consequence of the decision of the Panel - question of whether the Panel or the Council is “responsible for the decision” for the purposes of r 59.3(4) - applicant in Class 4 proceedings seeks joinder of the Panel in order to seek leave to issue interrogatories - the Council opposes joinder - holder of the challenged development consent takes no part in joinder hearing - held the Panel not “responsible for the decision” in the sense required by r 59.3(4) of the UCPR - joinder, in the alternative, also sought pursuant to r 6.24(1) of the UCPR - consideration of whether joinder necessary for issues in dispute -consideration of whether joinder necessary to bind the Panel to the outcome of the proceedings - neither basis for joinder established - joinder of the Panel rejected COSTS - costs of the application for joinder follow the event - the Applicant ordered to pay the Council's costs of the joinder motion as agreed or assessed
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.8 and 9.45 Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Bill 2017 Uniform Civil Procedure Rules 2005, rr 6.24(1) and 59.3(4)
Cases Cited:	KEPCO Bylong Australia Pty Ltd v Independent Planning Commission [2020] NSWLEC 38 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9 The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13
Category:	Procedural rulings
Parties:	Victor Lahoud (Applicant) Willoughby City Council (First Respondent) Helm Pty Limited (Second Respondent) Willoughby Local Planning Panel (Interested Party)
Representation:	Counsel: Mr T Robertson SC/Mr D Robertson, barrister (Applicant) Mr C Norton, barrister (First Respondent and Interested Party) Mr H Grace, barrister (Second Respondent) Solicitors: Woolf Associates (Applicant) Lindsay Taylor Lawyers (First Respondent and Interested Party) Mills Oakley (Second Respondent)
File Number(s):	292505 of 2021
Publication restriction:	No