Lyons v Sutherland Shire Council - [2001] NSWCA 430

Reported Decision:
[2001] ACL Rep 265 NSW 151
(2001) 117 LGERA 334

New South Wales

Court of Appeal

CITATION: Lyons v Sutherland Shire Council & Ors [2001] NSWCA 430

FILE NUMBER(S): CA 40903/00

HEARING DATE(S): 6 November 2001

JUDGMENT DATE:
27 November 2001

PARTIES :

William John Lyons - Appellant
Sutherland Shire Council - 1st Respondent
Ian Mayer & Kylie Ann Mayer - 2nd Respondents

JUDGMENT OF: Stein JA at 1; Ipp AJA at 37; Rolfe AJA at 50

LOWER COURT JURISDICTION : Land & Environment Court

LOWER COURT
FILE NUMBER(S) : LEC 40157/99

LOWER COURT
JUDICIAL OFFICER : Sheahan J

COUNSEL: T S Hale SC/ E A White - Appellant
C W McEwen - 1st Respondent
J E Robson - 2nd Respondent

SOLICITORS: The Law Firm of Solaris, Cronulla - Appellant
Sutherland Shire Council - 1st Respondent
Xenos Jordan, Kogarah - 2nd Respondents

CATCHWORDS: ENVIRONMENTAL LAW - development consent - delegated authority - impact upon heritage values of adjoining property - whether consent vitiated - whether delegation of authority exceeded - well-founded objections - D

LEGISLATION CITED: Sutherland Local Environmental Plan 1993

CASES CITED:
Brickworks Limited v Warringah Shire Counicl; Exparte Forssberg, Re Warringah Shire Council (1927) 8 LGR (NSW) 74
Everall v Ku-ring-gai Shire Council (1991) 72 LGRA 369
Joseph Lahoud & Associates Pty Ltd v North Sydney Council (Unreported, Land and Environment Court, 26 February 1998)
Pearson v Leichhardt Municipal Council (1997) 93 LGERA 206

DECISION: 1) Appeal allowed 2) Judgment and orders of Sheahan J set aside 3) Declare that the development consent granted by the first respondent to the second respondents and dated 4 August 1999 is invalid 4) Respondents to pay the appellant's costs of the appeal and at first instance and have a certificate under the Suitors' Fund Act if otherwise entitled.

CA 40903/00
LEC 40157/99

STEIN JA
IPP AJA
ROLFE AJA

Tuesday, 27 November 2001

LYONS v SUTHERLAND SHIRE COUNCIL & ORS

A development consent was granted to the second respondents to add a second story to their home in Caringbah by Mr P Lupevski, an officer of the first respondent Council, under authority delegated to him by the first respondent. The appellant’s house is situated above and directly behind the second respondents’ home and has considerable significance as a heritage building. The appellant’s home was the work of eminent architect Robin Boyd and the entire building was designed to take advantage of the views available of Port Hacking. The addition of a second story to the second respondents’ house would significantly diminish and block the most significant views. By the terms of the delegation, Mr Lupevski’s authority to determine the development application was excluded where, upon public notification, ‘well founded objections’ were made which could not be satisfied by conditions of consent or where they related to matters which were reasonable grounds for refusal of consent. Letters of objection were received from bodies including the National Trust and the Royal Australian Institute of Architects, as well as a number lodged…

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 Lyons v Sutherland Shire Council

Details

AGLC: Lyons v Sutherland Shire Council [2001] NSWCA 430
Case: [2001] NSWCA 430
Decision Date: 27 November 2001

CaseChat Overview and Summary

The appellant, Lyons, appealed to the Court of Appeal of New South Wales against a decision of Sheahan J concerning a development consent granted by the Sutherland Shire Council to the second respondents. The dispute centred on whether the development consent, which impacted the heritage values of the appellant's adjoining property, was validly granted.

The Court of Appeal was required to determine whether the development consent was vitiated due to the manner in which it was granted. Specifically, the court considered whether the delegation of authority by the Council to grant such consent was exceeded, and whether the objections raised by the appellant were well-founded, thereby requiring the Council to determine the application itself rather than delegate that power.

The Court of Appeal found that the Council had indeed exceeded its delegated authority in granting the consent. The reasoning focused on the nature of the objections raised by the appellant, which related to significant heritage impacts. The Court held that such objections were of a nature that necessitated determination by the Council itself, rather than by a delegated officer. Consequently, the consent was deemed invalid.

The appeal was allowed, and the judgment and orders of Sheahan J were set aside. The Court of Appeal declared that the development consent granted by the Sutherland Shire Council to the second respondents on 4 August 1999 was invalid. The respondents were ordered to pay the appellant's costs of the appeal and at first instance, with a certificate under the Suitors' Fund Act if otherwise entitled.

Orders

Orders of the court

1) Appeal allowed 2) Judgment and orders of Sheahan J set aside 3) Declare that the development consent granted by the first respondent to the second respondents and dated 4 August 1999 is invalid 4) Respondents to pay the appellant's costs of the appeal and at first instance and have a certificate under the Suitors' Fund Act if otherwise entitled.

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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CITATION:	Lyons v Sutherland Shire Council & Ors [2001] NSWCA 430
FILE NUMBER(S):	CA 40903/00
HEARING DATE(S):	6 November 2001
JUDGMENT DATE:	27 November 2001
PARTIES :	William John Lyons - Appellant Sutherland Shire Council - 1st Respondent Ian Mayer & Kylie Ann Mayer - 2nd Respondents
JUDGMENT OF:	Stein JA at 1; Ipp AJA at 37; Rolfe AJA at 50

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	LEC 40157/99
LOWER COURT JUDICIAL OFFICER :	Sheahan J

COUNSEL:	T S Hale SC/ E A White - Appellant C W McEwen - 1st Respondent J E Robson - 2nd Respondent
SOLICITORS:	The Law Firm of Solaris, Cronulla - Appellant Sutherland Shire Council - 1st Respondent Xenos Jordan, Kogarah - 2nd Respondents
CATCHWORDS:	ENVIRONMENTAL LAW - development consent - delegated authority - impact upon heritage values of adjoining property - whether consent vitiated - whether delegation of authority exceeded - well-founded objections - D
LEGISLATION CITED:	Sutherland Local Environmental Plan 1993
CASES CITED:	Brickworks Limited v Warringah Shire Counicl; Exparte Forssberg, Re Warringah Shire Council (1927) 8 LGR (NSW) 74 Everall v Ku-ring-gai Shire Council (1991) 72 LGRA 369 Joseph Lahoud & Associates Pty Ltd v North Sydney Council (Unreported, Land and Environment Court, 26 February 1998) Pearson v Leichhardt Municipal Council (1997) 93 LGERA 206
DECISION:	1) Appeal allowed 2) Judgment and orders of Sheahan J set aside 3) Declare that the development consent granted by the first respondent to the second respondents and dated 4 August 1999 is invalid 4) Respondents to pay the appellant's costs of the appeal and at first instance and have a certificate under the Suitors' Fund Act if otherwise entitled.