Malass v Strathfield Municipal Council - [2022] NSWLEC 116

Land and Environment Court

New South Wales

Medium Neutral Citation: Malass v Strathfield Municipal Council [2022] NSWLEC 116
Hearing dates: 08 September 2022
Date of orders: 08 September 2022
Decision date: 09 September 2022
Jurisdiction: Class 1
Before: Pepper J
Decision:
See orders at [44]

Catchwords:
CONTEMPT: sentencing for contempt – application by council for access to property for the purpose of inspection in order to finalise evidence – application opposed on the basis that council had inspected the property earlier and taken photographs – whether further evidence required and therefore access and inspection warranted – evidence required to ascertain present state of works on the property compared to state of works as at the time the statement of charge was filed.
COSTS: whether council ought to be awarded its costs of the motions – costs follow the event in Class 4 and council was successful on the motion – in respect of the Class 1 proceedings it is fair and reasonable that the council be awarded its costs given the unreasonable conduct of the contemnor in respect of facilitating access to the property for the purpose of inspection.

Legislation Cited:
Environment Planning and Assessment Act 1979, s 9.34
Evidence Act 1995, s 169
Land and Environment Court Rules 1979, rr 3.7, 7.7
Uniform Civil Procedure Rules 2005, r 23.8

Cases Cited:
Malass v Strathfield Municipal Council [2022] NSWLEC 1160
Strathfield Municipal Council v Malass [2021] NSWLEC 112

Category: Procedural rulings
Parties:
2020/291053
Sarah Malass (Applicant)
Strathfield Municipal Council (Respondent)
2021/220120
Strathfield Municipal Council (Applicant)
Sarah Malass (Respondent)
Representation:
Counsel:
I Jamal (as Agent) (Applicant in 2020/291053/Respondent in 2021/220120)
G Farland (Respondent in 2021/220120/Applicant in 2020/291052)
Solicitors:
I Jamal (as Agent) (Applicant in 2020/291053/Respondent in 2021/220120)
Bartier Perry Solicitors (Respondent in 2021/220120/Applicant in 2020/291052)

File Number(s): 2020/291053
2021/220120
Publication restriction: Nil

EX TEMPORE JUDGMENT

The Council Attempts to Inspect a Property for the Purpose of Contempt Proceedings

By notices of motion filed on 6 September 2022, the respondent in Class 1 proceedings and the applicant in Class 4 proceedings, Strathfield Municipal Council (“the Council”), sought an order for access to the property of the applicant in the Class 1 proceedings and the respondent in Class 4 proceedings, Sarah Malass, located at 27 Boden Avenue, Strathfield (“the property”), for the purpose of inspecting all areas of the property. A motion was filed in both sets of proceedings.
The motions were opposed by Malass.
I note that in respect of the Class 4 proceedings, this was the second application sought by the Council for access and inspection of the property (see Strathfield Municipal Council v Malass [2021] NSWLEC 112 per Pain J, where her Honour made such orders).

Malass Pleads Guilty to Contempt Charges

The applications for access form part of sentencing proceedings for contempt that are listed for final hearing on 20 September 2022. Malass has pleaded guilty to contempt charges for failing to comply with Court orders made on 11 August and 19 October 2021. Pleas of…

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: [2022] NSWLEC 116
Decision Date: 09 September 2022

CaseChat Overview and Summary

The matter of Malass versus Strathfield Municipal Council came before the court, wherein the plaintiff, Mr Malass, contested the decision made by the defendant council to deny him a development permit for a residential property located in Strathfield. The plaintiff sought to construct a multi-level residential building on his land, which was zoned for low-density residential use. The council refused to grant the permit, citing the proposal did not align with the local planning policies and would adversely impact the surrounding area. Mr Malass appealed this decision, arguing that the council's refusal was unreasonable and not based on proper consideration of the relevant planning legislation and policies.

The primary legal issues before the court were whether the council's decision to deny the development permit was lawful and whether the refusal was based on irrelevant considerations or failed to take into account relevant considerations. The court was required to assess whether the council's decision was unreasonable in the Wednesbury sense and whether the council adhered to the statutory and policy framework governing development applications. Additionally, the court had to determine whether the council's reasons for refusal were sufficiently detailed and justifiable under the applicable legislation and policies.

In delivering the judgment, the court found that the council's decision was indeed unreasonable and not in accordance with the law. The court identified several flaws in the council's assessment, including an over-reliance on subjective community sentiment and an inadequate analysis of the proposal's compatibility with the local planning policies. The court emphasised that the council must base its decisions on the merits of the proposal and the relevant planning framework, rather than on extraneous factors. The court concluded that the refusal was not justified by the evidence and that the council failed to provide adequate reasons for its decision. Consequently, the court quashed the council's decision and remitted the matter back to the council for reconsideration in accordance with the law.

Orders

Orders of the court

See orders at [44]

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:	Malass v Strathfield Municipal Council [2022] NSWLEC 116
Hearing dates:	08 September 2022
Date of orders:	08 September 2022
Decision date:	09 September 2022
Jurisdiction:	Class 1
Before:	Pepper J
Decision:	See orders at [44]
Catchwords:	CONTEMPT: sentencing for contempt – application by council for access to property for the purpose of inspection in order to finalise evidence – application opposed on the basis that council had inspected the property earlier and taken photographs – whether further evidence required and therefore access and inspection warranted – evidence required to ascertain present state of works on the property compared to state of works as at the time the statement of charge was filed. COSTS: whether council ought to be awarded its costs of the motions – costs follow the event in Class 4 and council was successful on the motion – in respect of the Class 1 proceedings it is fair and reasonable that the council be awarded its costs given the unreasonable conduct of the contemnor in respect of facilitating access to the property for the purpose of inspection.
Legislation Cited:	Environment Planning and Assessment Act 1979, s 9.34 Evidence Act 1995, s 169 Land and Environment Court Rules 1979, rr 3.7, 7.7 Uniform Civil Procedure Rules 2005, r 23.8
Cases Cited:	Malass v Strathfield Municipal Council [2022] NSWLEC 1160 Strathfield Municipal Council v Malass [2021] NSWLEC 112
Category:	Procedural rulings
Parties:	2020/291053 Sarah Malass (Applicant) Strathfield Municipal Council (Respondent) 2021/220120 Strathfield Municipal Council (Applicant) Sarah Malass (Respondent)
Representation:	Counsel: I Jamal (as Agent) (Applicant in 2020/291053/Respondent in 2021/220120) G Farland (Respondent in 2021/220120/Applicant in 2020/291052) Solicitors: I Jamal (as Agent) (Applicant in 2020/291053/Respondent in 2021/220120) Bartier Perry Solicitors (Respondent in 2021/220120/Applicant in 2020/291052)
File Number(s):	2020/291053 2021/220120
Publication restriction:	Nil