May v Northern Beaches Council - [2023] NSWCA 205

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: May v Northern Beaches Council [2023] NSWCA 205
Hearing dates: 28 August 2023
Date of orders: 05 September 2023
Decision date: 05 September 2023
Before: Meagher JA; Payne JA
Decision:
(1)    Extension of time to seek leave to appeal the primary judgment refused.
(2)    Summons seeking leave to appeal dismissed.
(3)   Applicant to pay the second respondent’s costs of the application for leave to appeal.
(4)    Notice of motion filed by the applicant on 27 July 2023 dismissed.
(5)    Applicant to pay the second respondent’s costs of the notice of motion.

Catchwords:
APPEALS — Leave to appeal — interlocutory decision in Land and Environment Court to summarily dismiss judicial review proceedings — applicant advanced no discrete basis for grant of leave — proposed grounds of appeal relied on in support of leave — leave refused

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW) s 4.55 (as at September 2021), s 96 (repealed 28 February 2018)
Environmental Planning and Assessment Regulation 2000 (NSW) cl 55, cl 98E
Land and Environment Court Act 1979 (NSW) s 20(1)(c)
Uniform Civil Procedure Rules 2005 (NSW) rr 42.7, 59.10

Cases Cited:
Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245
El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
IntrapacSkennars Head Pty Ltd v Ballina Shire Council [2021] NSWLEC 83
Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213
May v Northern Beaches Council [2023] NSWLEC 72
McMillan v Taylor [2023] NSWCA 183
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Petar v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142
Sharpe v Heywood [2013] NSWCA 192

Texts Cited:
Pittwater Local Environmental Plan 2014

Category: Principal judgment
Parties: Stephen May (applicant)
Northern Beaches Council (first respondent)
Paul Wilhelm (second respondent)
Representation:
Counsel:

In person (applicant)
Submitting appearance (first respondent)
M Harker (second respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (first respondent)
Clyde & Co (second respondent)

File Number(s): 2023/67640
Publication restriction: Nil
Decision under appeal

Court or tribunal:

New South Wales Land and Environment Court

Jurisdiction:

Class 4

Citation:

[2023] NSWLEC 7

Date of Decision:

14 February 2023

Before:

Robson J

File Number(s):

2021/00286184

JUDGMENT

THE COURT: Mr Stephen May seeks leave to appeal against an interlocutory decision of Robson J in the Land and Environment Court to summarily dismiss judicial review proceedings commenced by Mr May in that Court’s Class 4 jurisdiction: May v Northern Beaches Council (No 2) [2023] NSWLEC 7.

Background

The applicant lives in Church Point, next door to the second respondent, Mr Wilhelm. In 2017, Mr Wilhelm sought and obtained development consent from Northern Beaches Council (the first respondent) to build a family home. The first respondent later approved two modifications to that consent. Those modifications were granted in 2018 and 2021.…

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

Case: [2023] NSWCA 205
Decision Date: 05 September 2023

CaseChat Overview and Summary

May (the applicant) sought leave to appeal an interlocutory decision of the Land and Environment Court of New South Wales, which had summarily dismissed judicial review proceedings against Northern Beaches Council and the Minister for Planning and Public Spaces (the respondents). The applicant had not advanced any discrete basis for the grant of leave to appeal, instead relying on the proposed grounds of appeal themselves to support the application.

The primary legal issue before the Court of Appeal was whether to grant leave to appeal the Land and Environment Court's decision to summarily dismiss the judicial review proceedings. This involved considering whether the applicant had demonstrated sufficient grounds to warrant appellate intervention at this interlocutory stage.

The Court of Appeal refused the application for leave to appeal. Their Honours found that the applicant had not established any compelling reason for leave to be granted, and the proposed grounds of appeal did not demonstrate a strong likelihood of success or raise issues of sufficient importance to justify appellate review of the interlocutory decision. Consequently, the Court refused an extension of time to seek leave to appeal and dismissed the summons seeking leave to appeal. The applicant was ordered to pay the second respondent's costs of the application for leave to appeal and the notice of motion filed on 27 July 2023.

Orders

Orders of the court

(1) Extension of time to seek leave to appeal the primary judgment refused.

(2) Summons seeking leave to appeal dismissed.

(3) Applicant to pay the second respondent’s costs of the application for leave to appeal.

(4) Notice of motion filed by the applicant on 27 July 2023 dismissed.

(5) Applicant to pay the second respondent’s costs of the notice of motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	May v Northern Beaches Council [2023] NSWCA 205
Hearing dates:	28 August 2023
Date of orders:	05 September 2023
Decision date:	05 September 2023
Before:	Meagher JA; Payne JA
Decision:	(1) Extension of time to seek leave to appeal the primary judgment refused. (2) Summons seeking leave to appeal dismissed. (3) Applicant to pay the second respondent’s costs of the application for leave to appeal. (4) Notice of motion filed by the applicant on 27 July 2023 dismissed. (5) Applicant to pay the second respondent’s costs of the notice of motion.
Catchwords:	APPEALS — Leave to appeal — interlocutory decision in Land and Environment Court to summarily dismiss judicial review proceedings — applicant advanced no discrete basis for grant of leave — proposed grounds of appeal relied on in support of leave — leave refused
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) s 4.55 (as at September 2021), s 96 (repealed 28 February 2018) Environmental Planning and Assessment Regulation 2000 (NSW) cl 55, cl 98E Land and Environment Court Act 1979 (NSW) s 20(1)(c) Uniform Civil Procedure Rules 2005 (NSW) rr 42.7, 59.10
Cases Cited:	Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 IntrapacSkennars Head Pty Ltd v Ballina Shire Council [2021] NSWLEC 83 Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213 May v Northern Beaches Council [2023] NSWLEC 72 McMillan v Taylor [2023] NSWCA 183 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Petar v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 Sharpe v Heywood [2013] NSWCA 192
Texts Cited:	Pittwater Local Environmental Plan 2014
Category:	Principal judgment
Parties:	Stephen May (applicant) Northern Beaches Council (first respondent) Paul Wilhelm (second respondent)
Representation:	Counsel: In person (applicant) Submitting appearance (first respondent) M Harker (second respondent) Solicitors: Wilshire Webb Staunton Beattie Lawyers (first respondent) Clyde & Co (second respondent)
File Number(s):	2023/67640
Publication restriction:	Nil
Decision under appeal	Court or tribunal: New South Wales Land and Environment Court Jurisdiction: Class 4 Citation: [2023] NSWLEC 7 Date of Decision: 14 February 2023 Before: Robson J File Number(s): 2021/00286184