M.L. Einfeld QC / A. J. Thompson (Appellant) N.A. Hemmings QC (Respondent)
SOLICITORS:
Pike Pike and Fenwick (Appellant) Allen Allen & Hemsley (First Respondent) Staunton Beattie (Second Respondent)
CATCHWORDS:
Administrative law - Town Planning - Development consent - whether valid - inference that Council had failed to consider pre-condition in clause 17 of the Manly Local Environment Plan of 1998 - D
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40550/99 LEC 40188/98
POWELL JA
GILES JA
FITZGERALD JA
THURSDAY 5 APRIL 2001
MANLY COUNCIL v HORTIS
JUDGMENT
1 THE COURT: On 2 July 1998, the appellant Manly Council issued a Development Consent and Building Approval, subject to conditions, to the second respondent, Mr Gregory Mailman. On 25 September 1998, a modification was approved by the Council. The Development Consent, Building Approval and modification (the “approval”) related to a property at 21 Beatty Street, Balgowlah, which is located in a Foreshore Scenic Protection Area within the “Residential 2” zone under the Manly Local Environment Plan of 1998 (the “LEP”). The first respondent, Mr Edison Hortis, and his wife own the adjoining property at 23 Beatty Street.
2 The applications on which the Development Consent and Building Approval of 2 July 1998 were issued were lodged on 13 March 1998. Two earlier applications had been unsuccessful.
3 The initial applications were lodged on 31 October 1995. After objection from Mr and Mrs Hortis and a report by the Council’s Director of Environmental Services to its Building and Environment Committee, those applications were refused on 17 May 1996. An appeal to the Land and Environment Court was dismissed by Assessor Roseth on 17 October 1996.
4 Fresh applications were lodged on 24 December 1996. Mr and Mrs Hortis again objected. Those applications were refused on 20 February 1997. An appeal to the Land and Environment Court was again dismissed, on 19 May 1997 by Assessor Bull.
5 After the applications on which the Development Consent and Building Application were issued were lodged on 13 March 1998, Mr and Mrs Hortis again objected by a letter from their solicitors dated 21 April 1998. On 27 June 1998, Mr and Mrs Hortis wrote to the Council in support of their objection. On 29 June 1998, the Council…
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
AGLC
Manly Council v Hortis [2001] NSWCA 81
Case
[2001] NSWCA 81
Decision Date
CaseChat Overview and Summary
Manly Council appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court which had found that a development consent granted by the Council was invalid. The dispute concerned whether the Council had properly considered a pre-condition stipulated in clause 17 of the Manly Local Environmental Plan 1998 before granting the development consent.
The primary legal issue before the Court of Appeal was whether the Land and Environment Court had erred in inferring that Manly Council had failed to consider the pre-condition set out in clause 17 of the Manly Local Environmental Plan 1998 when it granted the development consent. This involved an examination of the evidence before the Land and Environment Court and the proper application of administrative law principles concerning the consideration of relevant matters by a consent authority.
The Court of Appeal, in dismissing the appeal, found that the inference drawn by the Land and Environment Court was open to it on the evidence presented. The Court affirmed that a consent authority must demonstrate that it has considered all relevant matters, including specific pre-conditions in an environmental plan, when determining a development application. The failure to do so could render the consent invalid. The appeal was dismissed with costs.