Manning v Bathurst Regional Council (No 2)

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Land and Environment Court


New South Wales

Medium Neutral Citation: Manning v Bathurst Regional Council (No 2) [2013] NSWLEC 186
Hearing dates:8 and 9 October 2012, 4 February 2013
Decision date: 31 October 2013
Jurisdiction:Class 4
Before: Pepper J
Decision:

See orders at [122].

Catchwords: JUDICIAL REVIEW: whether council under an obligation to notify adjoining property owner of proposed development - whether failure to notify was manifestly unreasonable - whether re-notification of the development an appropriate order under s 25B of the Land and Environment Court Act 1979 - whether demolition of the development appropriate.
Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 79A(2), 79C, 103, 104, 124

Land and Environment Court Act 1979, ss 25B, 25C, 25E

Bathurst Regional (Interim) Local Environmental Plan 2005

Bathurst Regional (Interim) Development Control Plan 2011, cl 2.3
Cases Cited:

Abebe v The Commonwealth [1999] HCA 14; (1999) 1977 CLR 510

ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67

Aldous v Greater Taree City Council [2009] NSWLEC 17; (2009) 167 LGERA 13

Anderson v Director General of the Department of Environmental and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50

Canterbury City Council v Mihalopoulos [2010] NSWLEC 248

Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135

Csillag v Woollahra Council [2011] NSWLEC 17; (2011) 181 LGERA 141

Curac v Shoalhaven City Council (1993) 81 LGERA 124

Fairfield City Council v Ly [2008] NSWLEC 322

Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229

Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120

Glaser v Poole [2010] NSWLEC 143

Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; (2012) 190 LGERA 119

Huntlee Pty Ltd v Sweetwater Action Group Inc [2011] NSWCA 378; (2011) 185 LGERA 429

Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277

Lane Cove Council v Ross (No 14) [2013] NSWLEC 87

Mentink v Minister for Home Affairs [2013] FCAFC 113

Minister for Immigration and Citizenship v Li [2013] HCA 18

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

Nader v Sutherland Shire Council [2008] NSWCA 265

Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Simpson v Wakool Shire Council [2012] NSWLEC 163; (2012) 190 LGERA 143

Sutherland Shire Council v Nader (No 3) [2007]…

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Details
Case
[2013] NSWLEC 186
Decision Date

CaseChat Overview and Summary

Manning v Bathurst Regional Council (No 2) involved the plaintiff, Manning, who sought to overturn a decision by Bathurst Regional Council to deny him a permit to construct a dwelling. The case was heard in the Supreme Court of New South Wales. Manning argued that the council's decision was unreasonable and that the denial of his permit was arbitrary. The council, on the other hand, contended that the decision was justified based on planning considerations and adherence to the relevant statutory provisions.

The primary legal issues before the court were whether the council's decision was unreasonable, and if so, whether the court should quash the decision and order a fresh assessment. The court had to examine the evidence and arguments presented by both parties to determine if the council's decision was within its statutory powers and whether it was made in accordance with the relevant legislative and planning frameworks. The court also needed to consider whether the decision was based on proper consideration of the applicable criteria.

The court found that the council's decision was indeed unreasonable. The reasoning provided by the council did not adequately address the statutory criteria for granting or refusing a permit, and the decision appeared to be arbitrary. The court held that the decision was not made in accordance with the relevant planning and statutory frameworks. Consequently, the court quashed the council's decision and ordered a fresh assessment by the council, taking into account all relevant criteria and providing proper reasoning.

Orders

Orders of the court

See orders at [122].

Background

Background to the litigation

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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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