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McGovern v Ku-ring-gai Council

McGovern v Ku-ring-gai Council

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Case Copied 20 February 2007 74 min read

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Reported Decision:
holding appeal filed
153 LGERA 308

Land and Environment Court

of New South Wales

CITATION: McGovern v Ku-ring-gai Council & Anor [2007] NSWLEC 22
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES: APPLICANTS
David McGovern and Roslyn McGovern
FIRST RESPONDENT
Ku-ring-gai Council
SECOND RESPONDENT
Marilena Allan

FILE NUMBER(S): 40607 of 2005

CORAM: Pain J

KEY ISSUES: Judicial Review :- invalidity of development consent - whether apprehension of bias by individual councillors and also Council as a whole in approving development consent - whether misrepresentation by applicant for development consent - whether failure to comply with statutory requirements by applicant for development consent - whether failure to take into account relevant considerations in approving development consent - whether irrelevant considerations taken into account by Council in approving development consent

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s78A
Environmental Planning and Assessment Regulation 2000 cl 50
Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 cl 11
Ku-ring-gai Planning Scheme Ordinance
Ku-ring-gai Residential Design Manual Development Control Plan 38
Local Government Act 1993 Ch 14, Sch 6
Local Government (General) Regulation 2005
Migration Act 1958 (Cth)
Roads (Opening and Closing) Act, 1932-1978 (SA)
Surveying Act 2002

CASES CITED: Al Oshlack on behalf of the Lismore Greens v Lismore City Council NSWLEC, Sheahan J, 25 September 1998, unreported;
Anderton v Auckland City Council [1978] 1 NZLR 657 ;
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 228;
Attorney-General for Victoria v City of Knox [1979] VR 513 ;
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353;
Bentham v Kiama Municipal Council (1986) 59 LGRA 94;
Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312;
Briginshaw v Briginshaw and Anor (1938) 60 CLR 336 ;
Courtney Hill v Gawler Town Corp; Consulere Pty Ltd (Intervening) (1988) 49 SASR 529;
Cranky Rock Road Action Group Inc & Anor v Cowra Shire Council and Ors [2005] NSWLEC 674 ;
Cranky Rock Road Action Group Inc & Anor v Cowra Shire Council & Ors [2006] NSWCA 339;
Eaton v Overland (2001) 67 ALD 671;
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337;
Farah v Warringah Council [2006] NSWLEC 191 ;
Gee v Council of the City of Sydney (2004) 137 LGERA 157;
Gianoutsos v Glykis (2006) 65 NSWLR 539 ;
GIO of NSW v Bailey [1992] 27 NSWLR 304;
Hodge v Williams (1947) 47 SR (NSW) 495 ;
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438;
I W v City of Perth (1996) 191 CLR 1;
Jones v Dunkel (1959) 101 CLR 298;
Kimber v Ku-Ring-Gai Municipal Council (1990) 130 LGERA 117;
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 ;
Kioa and Ors v West and Anor (1985) 159 CLR 550;
Kira…

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: [2007] NSWLEC 22
Decision Date: 20 February 2007

CaseChat Overview and Summary

David and Roslyn McGovern are neighbours of Marilena Allen, the owner of property at 49 Telegraph Road, Pymble. The McGoverns’ property at 51 Telegraph Road, Pymble is a heritage item. In 2004 and 2005 Ms Allen lodged two Development Applications (DAs) for alterations to the property at 49 Telegraph Road. The McGoverns commenced proceedings to challenge the approval of the 2004 DA. While those proceedings were proceeding, Ms Allen lodged a second DA for alterations to the property. The McGoverns challenged the approval of that second DA by the Ku-ring-gai Council. They sought a declaration of invalidity of the second DA and an order restraining Ms Allen from carrying out any development in reliance upon the consent. The McGoverns argued that the 2005 DA was invalid because: (a) it did not comply with statutory requirements because it did not include a survey prepared by a registered surveyor and a Statement of Environmental Effects (SEE) certified by a planner or architect, (b) it was obtained by misrepresentation, (c) the Council failed to take into account relevant considerations, (d) the Council took into account irrelevant considerations, and (e) the Council as a whole and individual councillors were biased. The Council submitted that the requirements in the Development Application Guide were not mandatory and the DA was not invalid for non-compliance with those requirements. The Council also submitted that the McGoverns had not established any of the other grounds of challenge. The Court found that the requirements in the Development Application Guide were not mandatory. The Council did not breach any statutory requirements in approving the 2005 DA. The McGoverns had not established that the Council was biased or that it failed to take into account relevant considerations or took into account irrelevant considerations. The Court dismissed the proceedings and reserved costs.

Orders