Malek v Woollahra Municipal Council

The plaintiff, Malek, sought a declaration from the court that he was entitled to a "small residential development" permit under the Environmental Planning and Assessment Act 1979 for a property located in Darling Point, Woollahra. The Woollahra Municipal Council opposed the application, asserting that the site was not suitable for such a development. The dispute was heard in the Land and Environment Court of New South Wales. The central legal issues the court had to resolve were whether the property in question qualified as a "small residential development" under the Act and if the council had acted lawfully in denying the permit.

The court examined the relevant legislative provisions and case law to determine the meaning of "small residential development." It was necessary to assess whether the property met the criteria for such a designation, including the size of the lot, the potential for development, and the impact on the surrounding environment. The court also needed to consider whether the council's decision was based on appropriate grounds and whether it was open to challenge on the basis of unreasonableness or procedural unfairness. In its reasoning, the court found that the property did indeed meet the criteria for a "small residential development" and that the council's decision to deny the permit was not supported by the evidence. The court held that the council had failed to properly consider the potential for development on the site and that its decision was therefore unreasonable.

As a result, the court granted the declaration sought by the plaintiff, finding that he was entitled to a "small residential development" permit for the property. The court also found that the council's decision to deny the permit was unlawful and should be quashed. The court ordered that the council reconsider the plaintiff's application for a permit, taking into account the correct legal criteria and the evidence presented. The orders made by the court are detailed at [49] of the judgment.