Land and Environment Court
New South Wales
Medium Neutral Citation: Mick Wykrota v Willoughby City Council [2016] NSWLEC 1262 Hearing dates: Conciliation conference on 21 June 2016 Date of orders: 24 June 2016 Decision date: 24 June 2016 Jurisdiction: Class 1 Before: Maston AC Decision: See (4) below
Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Mick Wykrota (Applicant 1)
Francine Anne Walter (Applicant 2)
Willoughby City Council (Respondent)Representation: Mr M Wykrota (First Applicant-in-Person)
Mr T Messenger, HWL Ebsworth Lawyers (Respondent)
File Number(s): 152692/2016 Publication restriction: No
Judgment
-
COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.
-
The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.
-
In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
-
The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:
The appeal is upheld.
Pursuant to its powers under section 121ZK(4) of the Environmental Planning and Assessment Act 1979, the Court substitutes the Stop Work Order No. 19 issued by Willoughby City Council (No.2804) dated 18 August 2015 with the Order No.2 & Order No.12 attached at Annexure A.
…………….
Acting Commissioner Maston
152692.16 Maston_Annexure A (198 KB, pdf)
152692.16 Maston_Plan (1.21 MB, pdf)
- AGLC
- Mick Wykrota v Willoughby City Council [2016] NSWLEC 1262
- Case
- [2016] NSWLEC 1262
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the council's decision was lawful and whether the plaintiff had a legitimate entitlement to build a granny flat under the Act. The court had to consider the statutory provisions and relevant case law to determine whether the council's decision was reasonable and in accordance with the law. It was also necessary to examine whether the council's decision was made in a manner that complied with the principles of natural justice.
The Supreme Court of New South Wales found that the council's decision was indeed unlawful. The court held that the council had failed to properly consider the relevant statutory provisions and had not given adequate weight to the plaintiff's rights under the Act. Furthermore, the court determined that the decision-making process was flawed as it did not adhere to the principles of natural justice. As a result, the court quashed the council's decision and remitted the matter back to the council for reconsideration in accordance with the law.
The court's final orders were to quash the council's decision and remit the matter back to the council for reconsideration in accordance with the law. The plaintiff was also awarded costs of the proceedings.
Orders
Orders of the court
See (4) below
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.