McClenahan v North Sydney Council - [2004] NSWCA 208

Reported Decision:
134 LGERA 379

Court of Appeal

CITATION: McCLENAHAN & ANOR v NORTH SYDNEY COUNCIL [2004] NSWCA 208 revised - 9/07/2004

HEARING DATE(S): 11 June 2004

JUDGMENT DATE:
24 June 2004

JUDGMENT OF: Sheller JA at 1; Ipp JA at 12; Stein AJA at 13

DECISION: 1 Appeal allowed; 2 Set aside the orders made by Lloyd J and in lieu thereof; (1) Answer the question in the consent order; 1(a) No; 1(b) Yes; 1(c) No; (2) Remit the proceedings to the Land and Environment Court to determine; 3 The respondent to pay the appellants' costs of the appeal but to have a certificate under the Suitors' Fund Act 1951 if so entitled.

CATCHWORDS: LAND AND ENVIRONMENT COURT - North Sydney Local Environmental Plan 2001 - development application refused - definition of 'apartment building adaptation' - meaning of 'within' - whether denial of procedural fairness

LEGISLATION CITED: N/A

CASES CITED: Chambers v Maclean Shire Council (2003) 57 NSWLR 152
Moreton Central Sugar Mill Co Ltd v The Commissioner of Taxation (Cth) (1967) 116 CLR 151

PARTIES :
John McClenahan and Tomoko McClenahan - Appellants
North Sydney Council - Respondent

FILE NUMBER(S): CA 40846/03

COUNSEL: B J Preston SC/S E Pritchard - Appellants
S Austin QC/G Furness - Respondent

SOLICITORS: Dibbs Barker Gosling - Appellants
Mallesons Stephen Jaques - Respondent

LOWER COURTJURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): L & E 10552/03

LOWER COURT
JUDICIAL OFFICER : Lloyd J

CA 40846/03
L & E 10552/03

SHELLER JA
IPP JA
STEIN AJA

McCLENAHAN & ANOR v NORTH SYDNEY COUNCIL

The appellants made a development application to the Respondent (‘the Council’) for a proposed development at 57 Cremorne Road, Cremorne Point. Erected on this property is a dwelling know as “Strathmore”, which is listed as a heritage item under the North Sydney Local Environment Plan 2001 (‘the LEP’). The development application provided for the partial demolition of Strathmore and the creation of four apartments and an underground car park by way of alterations and additions to that existing building. The Council refused this application on the basis that it was a prohibited development because it did not come within the definition of “apartment building adaptation” provided by the LEP.

The matter came before Lloyd J in the Land and Environment Court on 27 August 2003 for a determination as to the meaning of “apartment building adaptation” in the LEP. By consent order, the Court was asked to determine whether the definition required the creation of an apartment building to be 1(a) wholly within, 1(b) substantially but not wholly within or 1(c) any part of the proposed building be created within, a building other than an apartment building, that lawfully existed on the appointed day.

Lloyd J favoured the construction set out in 1(b). Further, his Honour held that the areas proposed to be constructed outside the fabric of the existing building were so extensive that it could not be said that the proposed apartment building was substantially within the…

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: [2004] NSWCA 208
Decision Date: 24 June 2004

CaseChat Overview and Summary

McClenahan and others (the appellants) appealed to the Court of Appeal of New South Wales against orders made by Lloyd J in the Land and Environment Court concerning a development application. The dispute centred on the interpretation of the North Sydney Local Environmental Plan 2001, specifically the definition of 'apartment building adaptation' and the meaning of the word 'within' in relation to that definition. The appellants also raised issues concerning whether they had been denied procedural fairness.

The primary legal issues before the Court of Appeal were: (1) the correct interpretation of the term 'apartment building adaptation' as defined in the North Sydney Local Environmental Plan 2001; (2) the meaning of the word 'within' as used in that definition; and (3) whether the appellants had been afforded procedural fairness in the proceedings before the Land and Environment Court.

The Court of Appeal allowed the appeal, setting aside the orders of Lloyd J. The Court answered specific questions posed in a consent order, determining that the development did not constitute an 'apartment building adaptation' under the LEP. The Court reasoned that the definition of 'apartment building adaptation' required the adaptation to occur *within* the existing building, and that the proposed works, which involved significant demolition and reconstruction, did not meet this requirement. The Court also found that the appellants had not been denied procedural fairness.

Consequently, the proceedings were remitted to the Land and Environment Court for determination. The respondent was ordered to pay the appellants' costs of the appeal, with a provision for a certificate under the Suitors' Fund Act 1951 if the respondent was so entitled.

Orders

Orders of the court

1 Appeal allowed; 2 Set aside the orders made by Lloyd J and in lieu thereof; (1) Answer the question in the consent order; 1(a) No; 1(b) Yes; 1(c) No; (2) Remit the proceedings to the Land and Environment Court to determine; 3 The respondent to pay the appellants' costs of the appeal but to have a certificate under the Suitors' Fund Act 1951 if so entitled.

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

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CITATION:	McCLENAHAN & ANOR v NORTH SYDNEY COUNCIL [2004] NSWCA 208 revised - 9/07/2004
HEARING DATE(S):	11 June 2004
JUDGMENT DATE:	24 June 2004
JUDGMENT OF:	Sheller JA at 1; Ipp JA at 12; Stein AJA at 13
DECISION:	1 Appeal allowed; 2 Set aside the orders made by Lloyd J and in lieu thereof; (1) Answer the question in the consent order; 1(a) No; 1(b) Yes; 1(c) No; (2) Remit the proceedings to the Land and Environment Court to determine; 3 The respondent to pay the appellants' costs of the appeal but to have a certificate under the Suitors' Fund Act 1951 if so entitled.
CATCHWORDS:	LAND AND ENVIRONMENT COURT - North Sydney Local Environmental Plan 2001 - development application refused - definition of 'apartment building adaptation' - meaning of 'within' - whether denial of procedural fairness
LEGISLATION CITED:	N/A
CASES CITED:	Chambers v Maclean Shire Council (2003) 57 NSWLR 152 Moreton Central Sugar Mill Co Ltd v The Commissioner of Taxation (Cth) (1967) 116 CLR 151
PARTIES :	John McClenahan and Tomoko McClenahan - Appellants North Sydney Council - Respondent
FILE NUMBER(S):	CA 40846/03
COUNSEL:	B J Preston SC/S E Pritchard - Appellants S Austin QC/G Furness - Respondent
SOLICITORS:	Dibbs Barker Gosling - Appellants Mallesons Stephen Jaques - Respondent

LOWER COURTJURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	L & E 10552/03
LOWER COURT JUDICIAL OFFICER :	Lloyd J