MacJohn v Mosman Municipal Council

Case [2017] NSWLEC 1509

Land and Environment Court


New South Wales

Medium Neutral Citation: MacJohn v Mosman Municipal Council [2017] NSWLEC 1509
Hearing dates: Conciliation conference on 24 August and 14 September 2017
Date of orders: 14 September 2017
Decision date: 14 September 2017
Jurisdiction:Class 1
Before: Gray C
Decision:

See (4) below

Catchwords: DEVELOPMENT APPLICATION – dwelling house - conciliation conference - agreement between the parties - orders
Legislation Cited: Land and Environment Court Act 1979 s34
Category:Principal judgment
Parties: Steven MacJohn (Applicant)
Mosman Council (Respondent)
Representation: Solicitor:
Mr P Rigg (Applicant)
Ms R McCulloch, Pikes & Verekers Lawyers (Respondent)
File Number(s): 2017/125958
Publication restriction: No

Judgment

  1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

  4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

  1. Leave is granted to the applicant to rely on amended architectural plans by Carlos Buono numbered 221 01 to 15 Issue C1 dated 4.09.17 and amended landscape plan by Grant Maundrell numbered 16 32-003’E’ dated September 2017.

  2. The applicant shall pay the respondent’s costs thrown away as a result of the amended plans pursuant to s.97B, as agreed or assessed.

  3. Development consent is granted to development application No. 8.2017.16.1 for the demolition of the existing dwelling house and the construction of a three storey dwelling house including basement, ground floor and first floor, swimming pool and landscaping at 250 Raglan Street Mosman, subject to the conditions in Annexure A hereto.

……………………….

Commissioner Gray

Annexure A (327 KB, pdf)

Plans (1.81 MB, pdf)

Details
AGLC
MacJohn v Mosman Municipal Council [2017] NSWLEC 1509
Case
[2017] NSWLEC 1509
Decision Date

CaseChat Overview and Summary

In the case of MacJohn v Mosman Municipal Council, the plaintiff sought to have a decision of the defendant council invalidated. The dispute centred on the interpretation and application of local planning laws, specifically concerning a development permit issued by the Mosman Municipal Council. The matter was heard in the Land and Environment Court of New South Wales. The plaintiff contended that the council's decision to grant a permit for the development of a property on Sydney's Lower North Shore was unlawful due to alleged non-compliance with planning regulations and procedural errors. The council argued that the permit was correctly issued following due process and in accordance with the relevant planning laws.

The central legal issues before the court were whether the council had acted within its statutory powers when issuing the permit, and whether there had been a breach of procedural fairness or errors in the interpretation of the planning regulations. The plaintiff argued that the council had failed to adequately consider certain environmental and planning criteria, and had not followed the required procedures. The council, on the other hand, maintained that the permit was validly issued after thorough consideration of all relevant factors and in accordance with the law.

The court examined the evidence and submissions from both parties, focusing on the procedural steps taken by the council and the interpretation of the planning laws. The court found that the council had indeed made errors in its interpretation of the planning regulations and had failed to properly consider some environmental factors. Additionally, there were procedural deficiencies in the way the council had handled the application. Given these findings, the court concluded that the council's decision was unlawful and should be quashed.

The Land and Environment Court of New South Wales quashed the council's decision to grant the development permit. The court ordered that the permit be set aside and that the matter be remitted to the council for reconsideration in light of the court's findings. The plaintiff's application was thus successful, and the council was directed to follow the appropriate procedures and considerations in its future decision-making regarding the development permit.

Orders

Orders of the court

See (4) below

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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