Lo v Sutherland Shire Council - [2024] NSWLEC 76

Land and Environment Court

New South Wales

Medium Neutral Citation: Lo v Sutherland Shire Council [2024] NSWLEC 76
Hearing dates: 26 July 2024
Date of orders: 26 July 2024
Decision date: 26 July 2024
Jurisdiction: Class 1
Before: Pain J
Decision:
The Court orders:
(1) The Applicant’s notice of motion dated 9 July 2024 is dismissed.
(2) Costs reserved.

Catchwords:
PROCEDURE – review of senior deputy registrar’s decision to allow expert planning evidence dismissed – no error of law established – no procedural unfairness established

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), rr 31.19, 31.20, 49.19

Cases Cited:
Malek v Woollahra Municipal Council (2017) 277 LGERA 401; [2017] NSWLEC 124
Tomko v Palasty(No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Texts Cited:
Practice Note Class 1 Residential Development Appeals

Category: Principal judgment
Parties: Michelle Lo (Applicant)
Sutherland Shire Council (Respondent)
Representation:
Counsel:
M Lo (Litigant in person, Applicant)
J Amy (Solicitor advocate, Respondent)
Solicitors:
N/A (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 2024/54349-002

EX TEMPORE JUDGMENT

The Applicant Ms Lo has commenced Class 1 proceedings appealing the refusal by the Respondent Sutherland Shire Council (the Council) of a modification application (MA) of a dual occupancy and strata subdivision at a property in Menai for which development consent was granted on 23 September 1998. Ms Lo is representing herself in her appeal.
Ms Lo has filed a notice of motion dated 9 July 2024 appealing a decision of the Senior Deputy Registrar on 21 June 2024 allowing the Council to rely on a specified town planning expert in relation to its contention 1. Contention 1 identifies as an issue whether the MA is substantially the same as the 1998 development consent. The notice of motion dated 9 July 2024 seeks an order that the Senior Deputy Registrar’s decision be discharged (meaning set aside) or alternatively that a single court appointed expert be ordered.
Part of Ms Lo’s affidavit in support of the notice of motion dated 9 July 2024 was read attaching the correspondence between the parties.
An affidavit of Ms Amy solicitor for the Council dated 19 July 2024, except the second sentence in par 17(c), was read. It also attached much of the same correspondence. No transcript of the hearing before the Senior Deputy Registrar was in evidence as none was able to be supplied in time following an application for it being made by Ms Amy. Ms Amy attests to her recollection of the Senior Deputy Registrar’s comments at par 16. The affidavit dated 19 July 2024 identifies a chronology of events leading up to the hearing before the Senior Deputy Registrar on 21 June 2024.
The parties agreed before me that they made submissions to the Senior Deputy Registrar in support of their position on 21 June 2024.
The Class 1 appeal was commenced on 12 February 2024. By email dated 28 March 2024 (Ex 1) the Council’s solicitor advised the Applicant of the capacity to adduce expert evidence and provided information…

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.

Continue reading Lo v Sutherland Shire Council

Details

AGLC: Lo v Sutherland Shire Council [2024] NSWLEC 76
Case: [2024] NSWLEC 76
Decision Date: 26 July 2024

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Lo v Sutherland Shire Council was heard. The applicant, Mr. Lo, sought to challenge a decision made by the Sutherland Shire Council regarding a development application for his property. The dispute centred around the council's refusal to grant approval for a proposed residential development on Mr. Lo's land. The court was tasked with determining whether the council's decision was lawful, reasonable, and based on proper consideration of the relevant statutory and policy frameworks.

The legal issues before the court included whether the council had acted within its statutory powers, followed the correct procedures, and appropriately considered all relevant factors when making its decision. The court also needed to assess whether the decision was rational and supported by evidence, and whether there was any procedural unfairness or bias that could render the decision invalid. Additionally, the court had to consider the merits of Mr. Lo's argument that the decision was unreasonable due to specific errors in the assessment process.

The court found that the Sutherland Shire Council's decision was lawful and reasonable. The judge held that the council had exercised its powers correctly, followed the necessary procedures, and considered all relevant factors in reaching its decision. The court concluded that there was no procedural unfairness or bias in the decision-making process, and that the decision was supported by sufficient evidence. The judge also found that Mr. Lo had not demonstrated that the decision was unreasonable, as the errors he alleged did not materially affect the outcome. Consequently, the court dismissed Mr. Lo's application and reserved the matter of costs for further consideration.

Orders

Orders of the court

The Court orders:

(1) The Applicant’s notice of motion dated 9 July 2024 is dismissed.

(2) Costs reserved.

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:	Lo v Sutherland Shire Council [2024] NSWLEC 76
Hearing dates:	26 July 2024
Date of orders:	26 July 2024
Decision date:	26 July 2024
Jurisdiction:	Class 1
Before:	Pain J
Decision:	The Court orders: (1) The Applicant’s notice of motion dated 9 July 2024 is dismissed. (2) Costs reserved.
Catchwords:	PROCEDURE – review of senior deputy registrar’s decision to allow expert planning evidence dismissed – no error of law established – no procedural unfairness established
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 31.19, 31.20, 49.19
Cases Cited:	Malek v Woollahra Municipal Council (2017) 277 LGERA 401; [2017] NSWLEC 124 Tomko v Palasty(No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Texts Cited:	Practice Note Class 1 Residential Development Appeals
Category:	Principal judgment
Parties:	Michelle Lo (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: M Lo (Litigant in person, Applicant) J Amy (Solicitor advocate, Respondent) Solicitors: N/A (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	2024/54349-002