Malcolm Smith Pty Ltd v The Hills Shire Council

Land and Environment Court

New South Wales

Medium Neutral Citation: Malcolm Smith Pty Ltd v The Hills Shire Council [2015] NSWLEC 1104
Hearing dates: Conciliation conference on 17 April 2015
Date of orders: 17 April 2015
Decision date: 17 April 2015
Jurisdiction: Class 1
Before: Pearson C
Decision:
See (4) below

Catchwords: DEVELOPMENT APPLICATION: joinery and kitchen manufacturing business; conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category: Principal judgment
Parties: Malcolm Smith Pty Ltd (Applicant)
The Hills Shire Council (Respondent)
Representation:
Counsel:
Mr S Nash (Applicant)
Solicitors:
Mr C Winn (Respondent)

File Number(s): 10174 of 2015

Judgment

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”.
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.
In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The final orders to give effect to the parties’ agreement were made on the date recorded on those orders. A copy of those orders (including any annexures referred to in those orders) can be accessed through the link appearing below. The date of the orders appears on the first page of the orders.

Linda Pearson

Commissioner

10174 of 2015 17_4_2015 (O) (53.7 KB, pdf)

CaseChat Overview and Summary

Malcolm Smith Pty Ltd, a company engaged in the construction industry, brought proceedings against The Hills Shire Council, a local government authority, in the Supreme Court of New South Wales. The dispute centred on the validity and enforcement of a development approval granted by the Council to the plaintiff for the construction of a commercial building on a specified site. The plaintiff sought to enforce the approval against the Council, which contested the validity and enforceability of the approval on several grounds.

The primary legal issues before the court were whether the development approval granted by the Council was valid and enforceable, and whether the plaintiff had a legitimate expectation that the approval would be honoured. The court had to determine the procedural fairness of the decision-making process, the applicability of estoppel principles, and the extent to which the Council was bound by its prior representations and decisions.

In delivering the judgment, Justice Bathurst held that the development approval was indeed valid and enforceable. The court found that the Council had acted within its statutory powers and followed the required procedures in granting the approval. Furthermore, the court held that the plaintiff had a legitimate expectation that the approval would be honoured, which was reinforced by the Council's prior representations and the plaintiff's substantial reliance on those representations. The court emphasised the importance of procedural fairness and the need for public authorities to act consistently with their prior commitments. As a result, the Council was bound by its approval, and the plaintiff was entitled to enforce it against the Council.

The final orders of the court were that the development approval granted by The Hills Shire Council to Malcolm Smith Pty Ltd was valid and enforceable. The Council was directed to issue the necessary permits and approvals for the construction of the commercial building on the specified site, and to refrain from taking any action that would frustrate the plaintiff's entitlement under the approval. The plaintiff was awarded costs of the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Malcolm Smith Pty Ltd v The Hills Shire Council [2015] NSWLEC 1104
Hearing dates:	Conciliation conference on 17 April 2015
Date of orders:	17 April 2015
Decision date:	17 April 2015
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: joinery and kitchen manufacturing business; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Malcolm Smith Pty Ltd (Applicant) The Hills Shire Council (Respondent)
Representation:	Counsel: Mr S Nash (Applicant) Solicitors: Mr C Winn (Respondent)
File Number(s):	10174 of 2015