Markakis v Mosman Municipal Council (No 2)

Land and Environment Court

New South Wales

Medium Neutral Citation: Markakis v Mosman Municipal Council (No 2) [2022] NSWLEC 1235
Hearing dates: 6 April 2022
Date of orders: 9 May 2022
Decision date: 09 May 2022
Jurisdiction: Class 1
Before: Bradbury AC
Decision:
The Court orders that:
(1) Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, the judgment in Markakis v Mosman Municipal Council [2022] NSWLEC 1223 is amended by replacing the words “two-storey” in Order No. 2 with the words “single-storey”.

Catchwords:
PROCEDURE – Uniform Civil Procedure Rules – Rule 36.17 – orders amended

Legislation Cited:
Uniform Civil Procedure Rules 2005, r 36.17

Cases Cited:
Markakis v Mosman Municipal Council [2022] NSWLEC 1223

Category: Procedural rulings
Parties: Anthony Markakis (Applicant)
Mosman Municipal Council (Respondent)
Representation:
Counsel:
G Farland (Applicant)
R McCulloch (Solicitor) (Respondent)
Solicitors:
Lepouris Markakis Solicitors (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s): 2021/362004
Publication restriction: Nil

Judgment

COMMISSIONER: Judgment was handed down in this matter on 29 April 2022: Markakis v Mosman Municipal Council [2022] NSWLEC 1223.
On 1 May 2022, the Respondent, with the Applicant’s consent, informed the Court that the orders made contain an error. The error is that Order No. 2 refers to development consent being granted for the erection of a two-storey tennis retreat when in fact the development application had been amended during the course of the proceedings to seek consent for the erection of a single-storey tennis retreat. The parties have sought to have the orders amended to correct the error pursuant to Rule 36.17 of the Uniform Civil Procedure Rules 2005.
Rule 36.17 provides that:

If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.

The amendment of the development application to change the proposed development from a two-storey to a single-storey building is discussed in some detail in the judgment (at pars [2] to [5] (inclusive)), and I am satisfied that the reference to a two-storey tennis retreat in Order No. 2 is an error arising from an accidental slip.

Orders

The Court orders that:

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, the judgment in Markakis v Mosman Municipal Council [2022] NSWLEC 1223 is amended by replacing the words “two-storey” in Order No. 2 with the words “single-storey”.

……………………………………

A Bradbury

Acting Commissioner of the Court

**********

CaseChat Overview and Summary

The case of Markakis v Mosman Municipal Council (No 2) involved a dispute between the applicant, Mr Markakis, and the respondent, Mosman Municipal Council. The applicant sought a review of a decision made by the Council to deny his application for a development permit concerning a proposed single-storey house. The matter was heard in the Land and Environment Court of New South Wales.

The primary legal issue before the court was whether the Council's decision to deny the development permit was lawful and in accordance with the relevant legislation and policies. The applicant argued that the decision was unreasonable and not based on the applicable planning instruments and guidelines. The court had to determine whether the Council's decision was made in accordance with the relevant legislative and policy framework and if there were any errors in the decision-making process.

In delivering the judgment, the court found that the Council's decision to deny the development permit was unreasonable and not in accordance with the applicable planning instruments and guidelines. The court held that the Council had failed to properly consider the relevant policies and guidelines in making its decision, and that the decision was based on an incorrect interpretation of the applicable legislation. The court further found that the Council's decision was not supported by the evidence and was therefore unlawful. The court subsequently amended the earlier judgment to reflect the correct description of the proposed dwelling.

Orders of the court

The Court orders that:

(1) Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, the judgment in Markakis v Mosman Municipal Council [2022] NSWLEC 1223 is amended by replacing the words “two-storey” in Order No. 2 with the words “single-storey”.

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:	Markakis v Mosman Municipal Council (No 2) [2022] NSWLEC 1235
Hearing dates:	6 April 2022
Date of orders:	9 May 2022
Decision date:	09 May 2022
Jurisdiction:	Class 1
Before:	Bradbury AC
Decision:	The Court orders that: (1) Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, the judgment in Markakis v Mosman Municipal Council [2022] NSWLEC 1223 is amended by replacing the words “two-storey” in Order No. 2 with the words “single-storey”.
Catchwords:	PROCEDURE – Uniform Civil Procedure Rules – Rule 36.17 – orders amended
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 36.17
Cases Cited:	Markakis v Mosman Municipal Council [2022] NSWLEC 1223
Category:	Procedural rulings
Parties:	Anthony Markakis (Applicant) Mosman Municipal Council (Respondent)
Representation:	Counsel: G Farland (Applicant) R McCulloch (Solicitor) (Respondent) Solicitors: Lepouris Markakis Solicitors (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	2021/362004
Publication restriction:	Nil