McGinn v Ashfield Council - [2011] NSWLEC 105

Land and Environment Court

New South Wales

Medium Neutral Citation: McGinn -v- Ashfield Council [2011] NSWLEC 105
Hearing dates: 23 June 2011
Decision date: 04 July 2011
Jurisdiction: Class 4
Before: Biscoe J
Decision:
(1) Proceedings dismissed. (2) Respondent to pay Applicant's costs until and including 16 December 2010 with the exception of Respondent's notice of motion filed on 8 November 2010 in respect of which there is no order for costs. (3) Applicant to pay Respondent's costs from 17 December 2010.

Catchwords: JUDICIAL REVIEW:- whether Respondent formed an opinion based on incorrect information; COSTS - whether no costs order should be made against unsuccessful applicant in proceedings brought in the public interest.
Legislation Cited: Ashfield Development Control Plan 2007
Civil Procedure Act 2005 ss 11, 98
Land and Environment Court Rules 2007 r 4.2
Uniform Civil Procedure Rules 2005 rr 1.7, 42.1
Cases Cited: Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59, 173 LGERA 280
Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39, 172 LGERA 157
John Williams Neighbourhood Group Inc v Minister for Planning [2011] NSWLEC 100
McGinn v Ashfield Council [2011] NSWLEC 84
Oshlack v Richmond River Council [1998] HCA 11, 193 CLR 72
Sinclair v Mining Warden at Maryborough [1975] HCA 17, 132 CLR 473
Category: Principal judgment
Parties: Sophia McGinn (Applicant)
Ashfield Council (Respondent)
Representation: Counsel:
Ms S McGinn in person (Applicant)
Mr P R Clay (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 40554 of 2010

Judgment

I dismissed this judicial review proceeding challenging the validity of a development consent on 4 May 2011: McGinn v Ashfield Council [2011] NSWLEC 84. Costs were reserved. The matter was listed before me on 23 June to determine the respondent Council's costs application.

Re-opening and Amendment

Upon the costs application being called on for hearing, the applicant applied orally to re-open and to amend her points of claim to raise a new ground of challenge to the validity of the second development consent. The Council did not object and I granted the application. This judgment should be read with my earlier judgment. The new ground is as follows:

The Council erred in forming a positive opinion of consistency with the objectives of the [Ashfield Development Control Plan 2007] because it was based on incorrect information, that is, the site had two street frontages... Drawing a conclusion based on incorrect information is an error in law; therefore, the second [development consent] should be invalid.

This alleged incorrect information is said to have been in the following statement in a Council report of 23 November 2010: "The proposal will not result in a 'isolated place' where there would otherwise be rear gardens for the main reason that the subject site has two street frontages. Therefore, the proposed dwelling will have its own street frontage thus ensuring that each dwelling has a front address and a rear access to its…

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: [2011] NSWLEC 105
Decision Date: 04 July 2011

CaseChat Overview and Summary

The matter between McGinn and Ashfield Council came before the court, where the applicant sought a declaration that the respondent's decision to deny the applicant's application for a permit to demolish a building on his property was invalid. The applicant argued that the respondent had acted unlawfully and without proper consideration of relevant factors. The court was required to determine whether the decision of the respondent was lawful, reasonable, and justified.

The primary legal issue that the court had to address was whether the respondent's decision to deny the applicant's permit application was unlawful. The court had to examine the relevant statutory provisions and case law to determine whether the respondent had acted within its powers and whether the decision was based on relevant considerations. The applicant argued that the respondent had failed to consider relevant factors and had acted arbitrarily and capriciously. The respondent, on the other hand, maintained that its decision was lawful and based on proper consideration of the relevant factors.

The court found that the respondent's decision to deny the applicant's permit application was lawful and reasonable. The court held that the respondent had acted within its powers and had properly considered the relevant factors. The court found that the applicant had failed to establish that the decision was unlawful or irrational. The court dismissed the applicant's proceedings and ordered that the respondent was to pay the applicant's costs until a certain date, with the exception of a particular notice of motion filed by the respondent. The applicant was ordered to pay the respondent's costs from a certain date.

Orders

Orders of the court

(1) Proceedings dismissed. (2) Respondent to pay Applicant's costs until and including 16 December 2010 with the exception of Respondent's notice of motion filed on 8 November 2010 in respect of which there is no order for costs. (3) Applicant to pay Respondent's costs from 17 December 2010.

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:	McGinn -v- Ashfield Council [2011] NSWLEC 105
Hearing dates:	23 June 2011
Decision date:	04 July 2011
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	(1) Proceedings dismissed. (2) Respondent to pay Applicant's costs until and including 16 December 2010 with the exception of Respondent's notice of motion filed on 8 November 2010 in respect of which there is no order for costs. (3) Applicant to pay Respondent's costs from 17 December 2010.
Catchwords:	JUDICIAL REVIEW:- whether Respondent formed an opinion based on incorrect information; COSTS - whether no costs order should be made against unsuccessful applicant in proceedings brought in the public interest.
Legislation Cited:	Ashfield Development Control Plan 2007 Civil Procedure Act 2005 ss 11, 98 Land and Environment Court Rules 2007 r 4.2 Uniform Civil Procedure Rules 2005 rr 1.7, 42.1
Cases Cited:	Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59, 173 LGERA 280 Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39, 172 LGERA 157 John Williams Neighbourhood Group Inc v Minister for Planning [2011] NSWLEC 100 McGinn v Ashfield Council [2011] NSWLEC 84 Oshlack v Richmond River Council [1998] HCA 11, 193 CLR 72 Sinclair v Mining Warden at Maryborough [1975] HCA 17, 132 CLR 473
Category:	Principal judgment
Parties:	Sophia McGinn (Applicant) Ashfield Council (Respondent)
Representation:	Counsel: Ms S McGinn in person (Applicant) Mr P R Clay (Respondent) Solicitors: Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	40554 of 2010