Lyons v Sutherland Shire Council - [2000] NSWLEC 214

Land and Environment Court

of New South Wales

CITATION: Lyons v Sutherland Shire Council & Anor [2000] NSWLEC 214

PARTIES: APPLICANT
William John Lyons
FIRST RESPONDENT
Sutherland Shire Council
SECOND RESPONDENTS
Ian Mayer and Kylie Ann Mayer

FILE NUMBER(S): 40157 of 1999

CORAM: Sheahan J

KEY ISSUES: Development Consent :- judicial review - assessment of DA - delegated authority - adequacy of consideration - manifest unreasonableness.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C
Local Government Act 1993 s 378

CASES CITED: Barmuncol Pty Ltd v Maroochy Shire Council (1983) 50 LGRA 309;
Botany Municipal Council v The Minister for Transport (1996) 90 LGERA 81;
Chisholm v Pittwater Council & Anor [2000] NSWLEC 143;
Hortis v Manly Council & Anor (1999) 104 LGERA 43;
King v Great Lakes Shire Council & Anor (1986) 58 LGRA 366;
LaHoud & Associates Pty Ltd v North Sydney Council [1998] NSWLEC 22;
Luu v Renevier (1989) 91 ALR 39;
Minister for Immigration & Ethniic Affairs v Teoh 183 CLR 273;
Parramatta City Council v Hale (1982) 47 LGRA 319;
Parramatta City Council v Pestell (1972) 128 CLR 305;
Person v Leichhardt Council (1997) 93 LGERA 206;
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155

DATES OF HEARING: 17-19/07/2000 and 21/07/2000

DATE OF JUDGMENT:
10/20/2000

LEGAL REPRESENTATIVES:
APPLICANT
Mr T Hale SC (Barrister) with
Mr D Weinberger (Barrister) (17-18/07/2000)
Solicitors
Solari's
FIRST RESPONDENT
Mr C McEwen (Barrister)
Solicitor
Mr G Christmas (Council)
SECOND RESPONDENTS
Mr J E Robson (Barrister)
Solicitors
Xenos Jordan

JUDGMENT:

IN THE LAND AND Matter No.40157 of 1999 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 20 October 2000

WILLIAM JOHN LYONS

Applicant

SUTHERLAND SHIRE COUNCIL

First Respondent

IAN MAYER and KYLIE ANN MAYER

Second Respondents

JUDGMENT

Introduction

1. In these class 4 proceedings, the applicant (“ Lyons ”) seeks:

(a) a declaration that a development consent (“ DC ”), granted by the First Respondent, Sutherland Shire Council (“ Council ”), to the Second Respondents (“ Mayer ”), is invalid and of no effect; and
(b) an order restraining any development pursuant to that consent.

2. Council’s consent to the relevant development application (“ DA ” No.99/3503), which was lodged on 10 June 1999, was granted on 4 August 1999, by its Environmental Assessment Officer, Peter Lupevski , allegedly pursuant to delegated authority.

3. The Mayers obtained that consent to add a storey to their residential property at 739 Port Hacking Road, Caringbah (“ No.739 ”). Lyons owns the land and house known as 733 Port Hacking Road, Caringbah (“ No.733 ”), located to the south of, uphill from, but (despite the numbering) immediately adjacent to, Mayer’s house (see Exhibit L1 ).

4. Both houses overlook, and enjoy quite beautiful views of, the waters of Port Hacking/Dolan’s Bay/Burraneer Bay, generally to their north, and it is conceded that the Mayer extensions will interfere with some of the major views currently enjoyed by Lyons.

5. The Lyons challenge requires

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: [2000] NSWLEC 214
Decision Date: 10/20/2000

CaseChat Overview and Summary

Lyons, the owner of a property adjacent to that of the Mayers, challenged the Sutherland Shire Council’s decision to grant the Mayers development consent to add a storey to their house, which would interfere with some of the major views currently enjoyed by Lyons. The Mayers’ property was within the “Residential 2 (e2)” zone under the Sutherland Shire Local Environmental Plan 1993 (“the 1993 LEP”) and within the designated “Foreshore Scenic Protection Area” defined in the “Foreshore Development - Development Control Plan”. The court was asked to determine whether the consent was granted in breach of s. 79C of the Environmental Planning and Assessment Act 1979 (“EP&A Act”), whether the Council’s decision to grant consent was manifestly unreasonable, and whether Lupevski was empowered to grant the consent and/or validly exercised such a power. The court found that the consent was validly granted. While Lupevski, the Environmental Assessment Officer who granted the consent, did not take into account all the submissions made by Lyons, the decision was still reasonably open to him. The court was satisfied that Lupevski had delegated authority, and that, in exercising it, he gave appropriate consideration to the Mayer DA and the Lyons objection. The application was dismissed.

Orders