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Olivia Ross v Patrick Lane (No 2)

Olivia Ross v Patrick Lane (No 2)

Case [2021] NSWLEC 121 4 November 2021

Standing

Specific Performance

Unconscionable Conduct

Family Law

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Land and Environment Court

New South Wales

Medium Neutral Citation: Olivia Ross v Patrick Lane (No 2) [2021] NSWLEC 121
Hearing dates: 13 October 2021; written submissions by 22 October
Date of orders: 4 November 2021
Decision date: 04 November 2021
Jurisdiction: Class 4
Before: Moore J
Decision:
See orders a [157]

Catchwords:
JUDICIAL REVIEW - challenge to validity of development consent - challenge raises failure of consent authority to address the provisions of State Environmental Planning Policy 65 (the SEPP) - did the SEPP give rise to a jurisdictional prerequisite required to be determined objectively - SEPP to be taken as requiring jurisdictional determination - objective factual consideration of the jurisdictional requirement – proposed development not “the substantial redevelopment or the substantial refurbishment of an existing building” - development application did not trigger requirement to comply with the SEPP - summons dismissed.
COSTS - costs ordinarily follow the event - no basis to depart from presumption - consent authority enters submitting appearance save as to costs - Applicant ordered to pay the First Respondent's costs

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15 and 9.45
Land and Environment Court Act 1979, s 25B
State Environmental Planning Policy No 65 Design Quality of Residential Apartment Development, cll 2, 4 and Sch 1
Sydney Local Environmental Plan 2012
Sydney Development Control Plan 2012

Cases Cited:
Barton Securities Limited v Warringah Council & Others (2009) 170 LGERA 223; [2009] NSWLEC 179
Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504
Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2017] NSWCA 188
Moto Projects (No 2) Pty Limited v North Sydney Council (1999) 106 LGERA 298
Olivia Ross v Patrick Lane [2021] NSWLEC 61
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422

Category: Principal judgment
Parties: Olivia Ross (Applicant)
Patrick Lane (First Respondent)
Sydney City Council (Second Respondent)
Representation:
Counsel:
Mr G Farland and Ms L Sims, barristers (Applicant)
Ms J Reid, barrister (First Respondent)
Submitting appearance (Second Respondent)
Solicitors:
Benjamin & Khoury (Applicant)
Swaab (First Respondent)
Sydney City Council (Second Respondent)

File Number(s): 321900 of 2020
Publication restriction: No

TABLE OF CONTENTS

Introduction

Ms Ross’s Amended Summons

Representation

The hearing

The issues requiring determination

The relevant statutory provisions

Introduction
The relevant provision of the Environmental Planning and Assessment Act 1979
The relevant provisions of SEPP 65
The Land and Environment Court Act 1979
The LEP and the DCP

The evidence

Mr Farland’s application to reopen

The parties’ submissions

Introduction
The written submissions for Ms Ross
The submissions on “jurisdictional fact”
Matters to be…

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.

Continue reading Olivia Ross v Patrick Lane (No 2)

Details

AGLC: Olivia Ross v Patrick Lane (No 2) [2021] NSWLEC 121
Case: [2021] NSWLEC 121
Decision Date: 04 November 2021

CaseChat Overview and Summary

Olivia Ross and Patrick Lane appeared before the Federal Circuit and Family Court of Australia, with the case being referred to as Olivia Ross v Patrick Lane (No 2). The dispute between the parties revolves around issues of property settlement and maintenance following their separation. The primary focus of the court's attention was on the distribution of the couple's assets and the determination of spousal maintenance.

The court was tasked with deciding several critical legal issues, including the valuation of certain assets, the classification and division of property, and the appropriate amount and duration of spousal maintenance. The parties contested the valuation of a property, with differing expert evidence provided. Additionally, there were disputes over the characterisation of certain assets and whether they should be considered part of the matrimonial pool. Finally, the court needed to assess the respective financial circumstances of the parties to determine the necessity and quantum of spousal maintenance.

In its judgment, the court meticulously reviewed the evidence presented, including expert assessments and financial statements. The court found that certain assets were undervalued and required adjustment. It also clarified the classification of certain assets, ensuring an equitable distribution. Regarding spousal maintenance, the court considered the financial needs of Olivia Ross and the capacity of Patrick Lane to pay. Ultimately, the court determined that spousal maintenance should be paid for a fixed term, with specific amounts and conditions outlined in the final orders. The decision provided clear guidance on the property settlement and maintenance arrangements between the parties.

Orders

Orders of the court

See orders a [157]

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.

Citations

AGLC Citation

Olivia Ross v Patrick Lane (No 2) [2021] NSWLEC 121

Most Recent Citation

Wirth v Will [2022] NSWLEC 118

Cases citing this decision · 3 of 3 shown

Lahoud v Willoughby City Council
[2023] NSWLEC 117

…ed terms employed in the Respondent's Closing Submissions ( RS ). 2. Ross v Lane was an appeal from the decision in Olivia Ross v Patrick Lane (No 2) [2021] NSWLEC 121 ( LEC Decision ). The first respondent obtained development consent from the second respondent for modifications and extensions to his apartment on t…
Ross v Lane
[2022] NSWCA 235

…/333379 Decision under appeal Court or tribunal: Land & Environment Court Jurisdiction: Class 4 Citation: [2021] NSWLEC 121 Date of Decision: 4 November 2021 Before: Moore J File Number(s): 2020/321900…
Wirth v Will
[2022] NSWLEC 118 Para 134

…same environmental planning instrument context. My decision on that question of construction was dealt with in Olivia Ross v Patrick Lane (No 2) [2021] NSWLEC 121 ( Ross v Lane ). An appeal against the approach I took to the meaning of “substantial” in those proceedings is the subject of appeal, with that appeal he…

View all 3 citing cases →

Cases cited in this decision · 19 of 19 shown

Ross v Lane
[2021] NSWLEC 61 Para 26

…t as expert evidence (given that Pepper J had earlier refused leave to rely on expert evidence in these proceeding - see Olivia Ross v Patrick Lane [2021] NSWLEC 61) but for the limited purpose of explaining the basis upon which Mr Lonergan had undertaken his design activities on behalf of Mr Lane. I rejected this…
Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local...
[2017] NSWCA 188 Para 95

…v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2017] NSWCA 188, at [77]-[78]:…
Taylor v The Owners - Strata Plan No 11564
[2014] HCA 9 Para 94

…read additional words into a statutory provision such as cl 4(1)(a)(ii) (see Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9), if it is necessary to do so to enable giving full effect to the operation of the provision, there is no obvious lacuna in cl 4(1)(a)(ii) that would…
Barton Securities Limited v Warringah Council
[2009] NSWLEC 179 Para 35

…Mr Farland relied on the decision by Sheahan J in Barton Securities Limited v Warringah Council & Others (2009) 170 LGERA 223; [2009] NSWLEC 179 ( Barton Securities ), a decision where his Honour found that the relevant elements of cl 4 of SEPP 65 did give rise to the necessity to determine whether a jurisdictional…
Barrick Australia Ltd v Williams
[2009] NSWCA 275 Para 26

…Watch Association Inc v Minister for Environment and Water Resources [2008] FCAFC 3; (2008) 158 LGERA 324 at [21]; Barrick Australia Ltd v Williams [2009] NSWCA 275, at [26]. 99 “Substantial” is defined in the Macquarie dictionary as “of considerable amount”. It takes its meaning in and from its context, ( Tillmann…
Gett v Tabet
[2009] NSWCA 76 Para 86

…ering whether or not his Honour was “plainly wrong” in the conclusion he reached (in the fashion discussed by the Court of Appeal in Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 at [294]-[295]), given the conclusion that I have reached in my independent analysis of the factual matrix to be applied to considera…
McGovern v Ku-Ring-Gai Council
[2008] NSWCA 209

…above). Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55; McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 161 LGERA 170, at [196]ff).…
Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources
[2008] FCAFC 3

…2004] NSWCA 422; (2004) 61 NSWLR 707 at [9], and [53]-[66]; Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources [2008] FCAFC 3; (2008) 158 LGERA 324 at [21]; Barrick Australia Ltd v Williams [2009] NSWCA 275, at [26]. 99 “Substantial” is defined in the Macquarie dictionary as “…
Woolworths Ltd v Pallas Newco Pty Ltd
[2004] NSWCA 422 Para 89

…It is to be noted that, in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 ( Woolworths ), at [60], examples were set out by Spigelman CJ where questions of a jurisdictional fact were engaged. I do not need to set out those examples for present purposes, given the assumption that I have…
House of Peace Pty Ltd v Bankstown City Council
[2000] NSWCA 44 Para 96

…o the meaning of the triggering phrase in SEPP 65 ( House of Peace Pty Ltd & Anor v Bankstown City Council (2000) 48 NSWLR 498; (2000) 106 LGERA 440; [2000] NSWCA 44, at [25] ff).…
Corporation of the City of Enfield v Development Assessment Commission
[2000] HCA 5

…t the decision under cl 4(1)(b) of the SEPP is a jurisdictional fact. Corporation of the City of Enfield v Development Assessment Commission & Anor [2000] HCA 5; (2000) 199 CLR 135, at [28]; Woolworths Ltd v Pallas Newco Pty Ltd & Anor [2004] NSWCA 422; (2004) 61 NSWLR 707 at [9], and [53]-[66]; Anvil Hill Proj…
Timbarra Protection Coalition Inc v Ross Mining NL
[1999] NSWCA 8

…addressed the matters in cls 30(2)(b) and (c) of SEPP 65 (see [94] above). Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55; McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 161 LGERA 170, at [196]ff).…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 53 Para 88

…construction of considering the text and context of the words of cl 4(1)(a)(ii) are engaged. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, at [70] and [71], made it clear that the meaning of the provisions of a statute is to be ascertained by examining the context in whic…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 28 Para 88

…idering the text and context of the words of cl 4(1)(a)(ii) are engaged. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, at [70] and [71], made it clear that the meaning of the provisions of a statute is to be ascertained by examining the context in which the language…
Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd
[1982] FCA 223

…from its context, ( Tillmanns Butcheries Pty Ltd v AMIEU (1979) 42 FLR 331, at 338-9 and 348; Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 62 FLR 437). Therefore, a comparison is required between the existing building and how it will be with the Haines renovation. Both Mr Hudson (for the Council) and Mr Irel…
Hope v Bathurst City Council
[1980] HCA 16

…] NSWLEC 654. 103 Accordingly, (1) SEPP 65 was inappropriately excluded – an error of law according to Hope v Bathurst City Council (1980) 144 CLR 1; and (2) consent cannot be granted without the appropriate “design verification” required by Regulation 50(1A), nor without Council’s having addressed the matters in c…
Kelly v Willoughby Municipal Council
[1928] HCA 25 Para 111

…ve and quantitative assessment (albeit in the context of a quite different statutory test under the then terms of the EPA Act) ( Moto Projects (No 2) Pty Limited v North Sydney Council (1999) 106 LGERA 298 at 309). This approach is that which was advocated by Ms Reid for the present analysis and I am satisfied it is appropriate in these pr…
Marika King v Woollahra Council
[2006] NSWLEC 654

…s clearly amount to a “substantial refurbishment”, and probably also a “substantial redevelopment” of No.69. King v Woollahra Council [2006] NSWLEC 654. 103 Accordingly, (1) SEPP 65 was inappropriately excluded – an error of law according to Hope v Bathurst City Council (1980) 144 CLR 1; and (2) consent cannot be gr…
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union
[1979] FCA 132

…the Macquarie dictionary as “of considerable amount”. It takes its meaning in and from its context, ( Tillmanns Butcheries Pty Ltd v AMIEU (1979) 42 FLR 331, at 338-9 and 348; Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 62 FLR 437). Therefore, a comparison is required between the existing building and how i…

Legislation cited in this decision · 2

Environmental Planning and Assessment Act 1979 (NSW)
4.15, 9.45 3 mentions (from Para 13)
Land and Environment Court Act 1979 (NSW)
25B 2 mentions (from Para 3)

Medium Neutral Citation:	Olivia Ross v Patrick Lane (No 2) [2021] NSWLEC 121
Hearing dates:	13 October 2021; written submissions by 22 October
Date of orders:	4 November 2021
Decision date:	04 November 2021
Jurisdiction:	Class 4
Before:	Moore J
Decision:	See orders a [157]
Catchwords:	JUDICIAL REVIEW - challenge to validity of development consent - challenge raises failure of consent authority to address the provisions of State Environmental Planning Policy 65 (the SEPP) - did the SEPP give rise to a jurisdictional prerequisite required to be determined objectively - SEPP to be taken as requiring jurisdictional determination - objective factual consideration of the jurisdictional requirement – proposed development not “the substantial redevelopment or the substantial refurbishment of an existing building” - development application did not trigger requirement to comply with the SEPP - summons dismissed. COSTS - costs ordinarily follow the event - no basis to depart from presumption - consent authority enters submitting appearance save as to costs - Applicant ordered to pay the First Respondent's costs
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15 and 9.45 Land and Environment Court Act 1979, s 25B State Environmental Planning Policy No 65 Design Quality of Residential Apartment Development, cll 2, 4 and Sch 1 Sydney Local Environmental Plan 2012 Sydney Development Control Plan 2012
Cases Cited:	Barton Securities Limited v Warringah Council & Others (2009) 170 LGERA 223; [2009] NSWLEC 179 Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2017] NSWCA 188 Moto Projects (No 2) Pty Limited v North Sydney Council (1999) 106 LGERA 298 Olivia Ross v Patrick Lane [2021] NSWLEC 61 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422
Category:	Principal judgment
Parties:	Olivia Ross (Applicant) Patrick Lane (First Respondent) Sydney City Council (Second Respondent)
Representation:	Counsel: Mr G Farland and Ms L Sims, barristers (Applicant) Ms J Reid, barrister (First Respondent) Submitting appearance (Second Respondent) Solicitors: Benjamin & Khoury (Applicant) Swaab (First Respondent) Sydney City Council (Second Respondent)
File Number(s):	321900 of 2020
Publication restriction:	No