Locke v Randwick City Council - [2004] NSWLEC 30

Land and Environment Court

of New South Wales

CITATION: Locke and Others v Randwick City Council and Others [2004] NSWLEC 30

PARTIES:
FIRST APPLICANT
Kathryn Janette Locke
SECOND APPLICANT
Terry Cashin
THIRD APPLICANT
Marie Therese Victoria Cashin
FOURTH APPLICANT
Sue Trimble
FIRST RESPONDENT
Randwick City Council
SECOND RESPONDENT
Paul Barry
THIRD RESPONDENT
Lisa McGregor

FILE NUMBER(S): 41283 of 2003

CORAM: Cowdroy J

KEY ISSUES: Development Consent :- objectors misinformed by council officer of procedure for objection to development application - objectors denied hearing before council contrary to legitimate expectation - ostensible authority of council officer to make representation - whether council estopped from denying the applicants a hearing before a meeting of council.

LEGISLATION CITED: Land and Environment Act 1979, s 69
Local Government Act 1993, s 362

CASES CITED: Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629;
Byron Shire Council v Vaughan (No 2) (2000) 110 LGERA 424;
Darling Casino Limited v New South Wales Casino Control Authority and Others (1996-1997) 191 CLR 602;
FAI Insurance Ltd v Winneke and Others (1981-1982) 151 CLR 342;
Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84;
Kanda v Government of Malaya [1962] AC 322;
Kioa and Others v West and Another (1985) 159 CLR 550;
Lever Finance Ltd v Westminister (City) London Borough Council [1971] 1 QB 222;
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597;
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1994-1995) 183 CLR 273;
Mirvac Homes Pty Ltd v Parramatta City Council (No 3) (1999) 111 LGERA 233;
Norfolk County Council v Secretary of State for the Environment and Another (1973) 1 WLR 1400;
Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) 110 LGERA 352;
Porter and Another v Hornsby Shire Council (1989) 69 LGRA 101;
R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299;
Save the Showground for Sydney Inc v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33;
Somerville v Dalby and Others (1990) 69 LGRA 422;
Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1QB 416;
The Commonwealth of Australia v Verwayen (1990) 170 CLR 394;
Wormald v Gioia (1980) 43 LGERA 101

DATES OF HEARING: 04/02/2004; 05/02/2004

DATE OF JUDGMENT: 02/20/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. Galasso (Barrister)
SOLICITORS
Kathryn Janette Locke (Litigant in Person)
RESPONDENT
Mr A. Thompson (Barrister)
SOLICITORS
Bowen & Gerathy

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

41283 of 2003

Cowdroy J

20 February 2004

Kathryn Janette Locke

First Applicant

Terry Cashin

Second Applicant

Marie Therese Victoria Cashin

Third Applicant

Sue Trimble

Fourth Applicant

Randwick City Council

First Respondent

Paul Barry

Second Respondent

Lisa McGregor

Third Respondent

Judgment

Introduction

1 The applicants seek a declaration that development consent to DA 03/00323GA (“the consent”) granted by the first respondent (“the council”) on 25 September 2003 and…

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: [2004] NSWLEC 30
Decision Date: 02/20/2004

CaseChat Overview and Summary

The applicants sought a declaration that the development consent granted by the Council for a proposed renovation to a property at 35 Knox Street, Clovelly was invalid. The applicants, who were residents of adjacent properties, argued that they were misled by a council officer, Ms Aitken, about the process for objecting to the development application. They claimed that Ms Aitken represented that they could object to the decision of Ms Aitken's manager after her report had been approved, by requesting three councillors to call a meeting of the council to review the decision. The applicants argued that this representation gave rise to a legitimate expectation that they would have the opportunity to address the council before a final decision was made, and that the council was estopped from denying them that opportunity. The council argued that Ms Aitken did not have authority to make such representations and that there was no legitimate expectation or estoppel.

The court found that Ms Aitken did have ostensible authority to provide information about the development application and that the applicants were misled by her representation about the objection process. The court held that the applicants had a legitimate expectation of being able to object to the decision of Ms Aitken's manager, and that the council was estopped from denying them that opportunity. The court declared the development consent invalid and restrained the council from exercising its delegated power to determine the development application for 28 days. The council was ordered to pay the applicants' costs unless an application was made to vary that order.

Orders