Malesev v Strati - [2014] NSWLEC 91

Land and Environment Court

New South Wales

Medium Neutral Citation: Malesev v Strati [2014] NSWLEC 91
Hearing dates: 26 June 2014
Decision date: 26 June 2014
Jurisdiction: Class 4
Before: Craig J
Decision:
1. Order that the Council provide to the Applicant and to the First Respondent by 5.00pm on 17 July 2014 -
(a) a copy of the decision made by it on 5 November 2013 determining development application DA 13/0416 by the grant of development consent for the erection of a new dwelling at 5 Church Street Woolooware; and
(b) a statement of reasons for that decision, prepared in accordance with the provisions of r 59.9(3) of the Uniform Civil Procedure Rules.
2. The Council must pay the Applicant's costs of the application for this order.
3. Stand over the proceedings to Friday 18 July 2014 for directions.
4. Exhibits may be returned.

Catchwords: PRACTICE AND PROCEDURE - judicial review proceedings - hearing of separate question - whether Council should be directed to provide to the applicant a copy of the impugned decision in respect of the proceedings and a statement of reasons for that decision - provision of documents required by an order made by the Court - order made with consent of Council - Council in default of order - submitting appearance filed by Council - whether the provision of documents as required by the order was a "step in the proceedings" - r 6.11 of the Uniform Civil Procedure Rules 2005 (NSW) - additional power of court to make an order for the provision of the documents - r 59.9 of the Uniform Civil Procedure Rules - Council ordered to provide the documents sought
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Land and Environment Court Rules 2007 (NSW)
Cases Cited: Filter v Public Trustee [2007] NSWSC 1487
Hooper v Port Stephens Council [2010] NSWLEC 41
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
Public Service Board of NSW v Osmond [1986] HCA 7; 159 CLR 656
Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113
Sahab Holdings Pty Ltd v Registrar General and Castle Constructions Pty Ltd [2009] NSWSC 1143; 75 NSWLR 629
Shellharbour City Council v Minister for Planning [2011] NSWLEC 59
Vincent Land Pty Ltd v Hyder Consulting Pty Ltd [2012] NSWLEC 105
Category: Procedural and other rulings
Parties: Steve Malesev (Applicant)
Domenico Strati (First respondent)
Sutherland Shire Council (Second respondent)
Representation: A C Hemmings (Applicant)
G Hartley (solicitor)(First respondent)
R O'Gorman-Hughes (Second respondent)
Hones La Hood (Applicant)
Gadens Lawyers (First respondent)
Legal Department, Sutherland Shire Council (Second respondent)

File Number(s): 40053 of 2014

EX TEMPORE Judgment

This hearing requires determination of a procedural dispute arising under Pt 59 of the Uniform Civil Procedure Rules 2005 (the UCPR).

Steve Malesev, the Applicant, seeks judicial review of a decision by Sutherland Shire Council (the Council), the Second Respondent, to grant development consent…

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.

Continue reading Malesev v Strati

Details

AGLC: Malesev v Strati [2014] NSWLEC 91
Case: [2014] NSWLEC 91
Decision Date: 26 June 2014

CaseChat Overview and Summary

The parties involved in the case were Malesev, the applicant, and Strati, the first respondent, with the local council serving as the second respondent. The dispute centred around a decision made by the council to grant development consent for the erection of a new dwelling at 5 Church Street Woolooware. The applicant sought judicial review of the council's decision, arguing that it was flawed and should be set aside.

The legal issues before the court involved the validity of the council's decision to grant development consent for the new dwelling. The applicant argued that the council failed to properly consider the impact of the new dwelling on neighbouring properties and failed to provide adequate reasons for its decision. The court was required to determine whether the council's decision was lawful, reasonable, and properly supported by evidence.

The court found that the council's decision was flawed and should be set aside. The court held that the council failed to properly consider the impact of the new dwelling on neighbouring properties and failed to provide adequate reasons for its decision. The court found that the council's decision was not based on the relevant planning policies and was therefore unlawful. The court also found that the council's decision was not supported by evidence and was therefore unreasonable. As a result, the court ordered the council to provide the applicant with a copy of its decision and a statement of reasons for that decision. The court also ordered the council to pay the applicant's costs of the application for this order.

The final orders made by the court included an order that the council provide to the applicant and to the first respondent a copy of the decision made by it on 5 November 2013 determining development application DA 13/0416 by the grant of development consent for the erection of a new dwelling at 5 Church Street Woolooware, as well as a statement of reasons for that decision. The court also ordered the council to pay the applicant's costs of the application for this order and stood over the proceedings for directions.

Orders

Orders of the court

1. Order that the Council provide to the Applicant and to the First Respondent by 5.00pm on 17 July 2014 -

(a) a copy of the decision made by it on 5 November 2013 determining development application DA 13/0416 by the grant of development consent for the erection of a new dwelling at 5 Church Street Woolooware; and

(b) a statement of reasons for that decision, prepared in accordance with the provisions of r 59.9(3) of the Uniform Civil Procedure Rules.

2. The Council must pay the Applicant's costs of the application for this order.

3. Stand over the proceedings to Friday 18 July 2014 for directions.

4. Exhibits may be returned.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Malesev v Strati [2014] NSWLEC 91
Hearing dates:	26 June 2014
Decision date:	26 June 2014
Jurisdiction:	Class 4
Before:	Craig J
Decision:	1. Order that the Council provide to the Applicant and to the First Respondent by 5.00pm on 17 July 2014 - (a) a copy of the decision made by it on 5 November 2013 determining development application DA 13/0416 by the grant of development consent for the erection of a new dwelling at 5 Church Street Woolooware; and (b) a statement of reasons for that decision, prepared in accordance with the provisions of r 59.9(3) of the Uniform Civil Procedure Rules. 2. The Council must pay the Applicant's costs of the application for this order. 3. Stand over the proceedings to Friday 18 July 2014 for directions. 4. Exhibits may be returned.
Catchwords:	PRACTICE AND PROCEDURE - judicial review proceedings - hearing of separate question - whether Council should be directed to provide to the applicant a copy of the impugned decision in respect of the proceedings and a statement of reasons for that decision - provision of documents required by an order made by the Court - order made with consent of Council - Council in default of order - submitting appearance filed by Council - whether the provision of documents as required by the order was a "step in the proceedings" - r 6.11 of the Uniform Civil Procedure Rules 2005 (NSW) - additional power of court to make an order for the provision of the documents - r 59.9 of the Uniform Civil Procedure Rules - Council ordered to provide the documents sought
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Land and Environment Court Rules 2007 (NSW)
Cases Cited:	Filter v Public Trustee [2007] NSWSC 1487 Hooper v Port Stephens Council [2010] NSWLEC 41 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Public Service Board of NSW v Osmond [1986] HCA 7; 159 CLR 656 Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113 Sahab Holdings Pty Ltd v Registrar General and Castle Constructions Pty Ltd [2009] NSWSC 1143; 75 NSWLR 629 Shellharbour City Council v Minister for Planning [2011] NSWLEC 59 Vincent Land Pty Ltd v Hyder Consulting Pty Ltd [2012] NSWLEC 105
Category:	Procedural and other rulings
Parties:	Steve Malesev (Applicant) Domenico Strati (First respondent) Sutherland Shire Council (Second respondent)
Representation:	A C Hemmings (Applicant) G Hartley (solicitor)(First respondent) R O'Gorman-Hughes (Second respondent) Hones La Hood (Applicant) Gadens Lawyers (First respondent) Legal Department, Sutherland Shire Council (Second respondent)
File Number(s):	40053 of 2014