CITATION: Maule v Liporoni & Anor [2002] NSWLEC 25

PARTIES:
APPLICANT:
Susan Jane Maule
FIRST RESPONDENT:
Marco Liporoni
SECOND RESPONDENT:
Gosford City Council

FILE NUMBER(S): 40018 of 2001

CORAM: Lloyd J

KEY ISSUES: Judicial Review :- validity of development consent - mala fides - jurisdictional error
Development Consent:- validity - owner's consent to development application - integrated development

LEGISLATION CITED: Conveyancing Act 1919, s 88B
Environmental Planning and Assessment Act 1979, Pt 4 Div 5, s 5A, s 28, s 78A, s 79A, s 79C, s 91, s 91A, s 95A(5), s 101 and s 112
Environmental Planning and Assessment Regulation 1994, cl 46(1)
Environmental Planning and Assessment Regulation 2000, cl 49(1)
Evidence Act 1995, s 140(2)
Rivers and Foreshores Improvement Act 1998, Pt 3A, s 2

CASES CITED: Amacon Pty Ltd v Concord Municipal Council, NSWLEC, Hemmings J, 2 December 1987, unreported;
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321;
Azzopardi v Gosford City Council (No. 2) [2001] NSWLEC 283;
Briginshaw v Briginshaw (1938) 60 CLR 336;
Burke v Hawkesbury City Council [2001] NSWLEC 222;
Cartier Holdings Pty Limited v Newcastle City Council (2001) 115 LGERA 407;
City of Enfield v Development Assessment Commission (2000) 199 CLR 135;
Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602;
Minister of Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24;
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; 67 ALJR 170;
R v Hickman; Ex parte Fox (1945) 70 CLR 598;
Randwick Municipal Council v Manousaki (1988) 66 LGRA 330;
Sericott v Snowy River Shire Council (1999) 108 LGERA 66;
Timbarra Protection Coalition Inc. v Ross Mining NL (1999) 46 NSWLR 55;
Woolworths Limited v Bathurst City Council (1987) 63 LGRA 55

DATES OF HEARING: 03/12/2001, 04/12/2001, 05/12/2001, 06/12/2001,07/12/2001,10/12/2001, 11/12/2001 and 12/12/2001

DATE OF JUDGMENT:
03/19/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr C J Stevens QC and Mr J R Dupree (barrister)
SOLICITORS:
L C Muriniti & Associates
FIRST RESPONDENT:
Mr C M Harris (barrister)
SOLICITORS:
Tesoriero Henderson Cotter
SECOND RESPONDENT:
Mr P C Tomasetti (barrister)
SOLICITORS:
P J Donnellan & Co

JUDGMENT:

IN THE LAND AND Matter No.: 40018 of 2001

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 19 March 2002

Susan Jane Maule

Applicant

Marco Liporoni

First Respondent

Gosford City Council

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, Ms S J Maule owns a property known as No. 99 Woy Woy Bay Road, Woy Woy Bay. The first respondent, Mr M Liporoni, owns the adjoining property known as No. 97 Woy Woy Bay Road, Woy Woy Bay. On 30 July 1999 the second respondent, Gosford City Council (which I shall call “the council”) granted consent to a development application made by Mr Liporoni to erect a house at No. 97 Woy Woy Bay Road, subject to conditions.

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 Maule v Liporoni

Details

AGLC: Maule v Liporoni [2002] NSWLEC 25
Case: [2002] NSWLEC 25
Decision Date: 03/19/2002

CaseChat Overview and Summary

Susan Jane Maule initiated proceedings against Marco Liporoni and Gosford City Council, seeking relief related to a development consent granted by the Council to Liporoni for the construction of a house on his property at No. 97 Woy Woy Bay Road. The primary issues before the Court included the validity of the development consent, whether there was any jurisdictional error or mala fides involved in the Council's decision, and the adequacy of the Council's assessment of various environmental and legal considerations. The Court found that the development consent was valid, and no jurisdictional error or mala fides were demonstrated. It held that the Council's processes, while not perfect, were within their legal authority and did not result in unlawful decisions. The applicant's claims for relief were dismissed, and the question of costs was reserved for further consideration.

Orders