McGinn v Ashfield Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	McGinn v Ashfield Council [2011] NSWLEC 84
Hearing dates:	4 May 2011
Decision date:	04 May 2011
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	Application dismissed
Catchwords:	JUDICIAL REVIEW: challenge to validity of development consent - whether apprehended bias - whether error in making findings of consistency with development control plan - whether Wednesbury unreasonableness.
Legislation Cited:	Ashfield Local Environmental Plan 1985 Environmental Planning and Assessment Act 1979 ss 79C, 81(1)(a) Land and Environment Court Rules 2007 r 4.2
Cases Cited:	Associated Provincial Picture Houses Ltd v Wedesbury Corporation [1948] 1 KB 223 Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 McGovern v Ku-ring-gai Council [2008] NSWCA 209, 72 NSWLR 504 Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145, 174 LGRA 67 Mid Western Community Action Group Inc v Mid-Western Regional Council (No 2) [2008] NSWLEC 143 R v Commonwealth Conciliation and Arbitration Commission; Ex parte the Angliss Group (1969) 122 CLR 546
Category:	Principal judgment
Parties:	Sophia McGinn (Applicant) Ashfield Council (Respondent)
Representation:	Ms S McGinn in person (Applicant) Mr P R Clay (Respondent) N/A (Applicant) Wilshire Webb (Respondent)
File Number(s):	40554/10

EX TEMPORE JUdgment

1. This is a challenge to the validity of a development consent

FACTS

1. The facts are largely uncontroversial. On 4 May 2010 the owner of the property at 15 Brunswick Parade, Ashfield ( the Property ) made a development application ( first DA ) for an additional detached house on the Property at the rear of the existing house.

1. The street frontage of the additional dwelling is to Park Lane, which is at the rear of the Property and parallel to Brunswick Parade. The proposed additional dwelling has no apparent access to Brunswick Parade. It is relevant to note that the proposed additional dwelling is to have a private rear garden, just as the existing dwelling on the Property has a private rear garden.

1. In May 2010 the first DA was notified in accordance with the Council's notification policy.

1. In June 2010 the applicant, Ms Sophia McGinn, who resides next door to the Property, made a submission concerning the overlooking of her property from the proposed new dwelling.

1. In June 2010 Council officers reported to the Council recommending approval. The Council's delegate granted the first development consent ( first consent ).

1. In July 2010 the applicant commenced these proceedings challenging the validity of the first consent.

1. On 8 September 2010 the owner of the Property made a second development application for a very similar dwelling on the Property ( second DA ).

1. The next day the owner lodged with the Council a letter purporting to surrender the first consent. A Council officer expressed the view that it was not an effective surrender. Consequently, he lodged an effective surrender on 27 September 2010, which was accepted by the Council by letter that day. The Council then attended to notification of the second DA.