Papadopoulos v Blue Mountains City Council - [2015] NSWLEC 164

Land and Environment Court

New South Wales

Medium Neutral Citation: Papadopoulos v Blue Mountains City Council [2015] NSWLEC 164
Hearing dates: 22 October 2015
Date of orders: 22 October 2015
Decision date: 22 October 2015
Jurisdiction: Class 1
Before: Craig J
Decision:
1. Appeal dismissed
2. The Appellant must pay the Respondent's costs of the appeal

Catchwords: APPEAL – s 56A of the Land and Environment Court Act 1979 – appeal against Council order to remove shipping containers from property – appeal to Court pursuant to s 121ZK of the Environmental Planning and Assessment Act 1979 – s 121ZK appeal dismissed – no legal error in Commissioner not discontinuing matter – no right to trial by jury – order by Council does not seek to appropriate property – appeal dismissed – order for costs
Legislation Cited: Blue Mountains Local Environmental Plan 2005
Environmental Planning and Assessment Act 1979 (NSW)
Civil Procedure Act 2005 (NSW)
Land and Environment Court Act 1979 (NSW)
Local Government Act 1993 (NSW)
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Baker v Attorney General for New South Wales [2013] NSWCA 329
Byrnes v The Queen [1999] HCA 38; 199 CLR 1
Papadopoulos v Blue Mountains City Council [2015] NSWLEC 1169
Rafailidis v Roads and Maritime Services [2015] NSWCA 143
Category: Principal judgment
Parties: Savvas Papadopoulos (Appellant)
Blue Mountains City Council (Respondent)
Representation:
Counsel:
Self-represented (Appellant)
R O’Gorman-Hughes (Respondent)
Solicitors:
Self-represented (Appellant)
Marsdens Law Group (Respondent)

File Number(s): 10507 of 2015

EX TEMPORE Judgment

Savvas Papadopoulos is the owner of a property known as 7–9 Richmond Avenue, Medlow Bath (the property). By an order given to him by Blue Mountains City Council (the Council) on 13 October 2014 he was required to remove two shipping containers located within the rear yard of that property. That order was given to Mr Papadopoulos by the Council under the provisions of s 121B(1) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act).
Mr Papadopoulos appealed against that order, as he was entitled to do, under s 121ZK of the EPA Act. His appeal was heard by Commissioner Morris on 5 May 2015. In a judgment delivered on 21 May 2015, the Commissioner ordered that the appeal be dismissed; confirmed the order made by the Council on 13 October 2014 and extended the time for compliance to a period of 28 days from the date of her orders (Papadopoulos v Blue Mountains City Council [2015] NSWLEC 1169).
Exercising his right under s 56A of the Land and Environment Court Act 1979 (NSW) (the Court Act), Mr Papadopoulos now appeals from the whole of the decision of the Commissioner. In arguing his appeal before me he was self-represented, as he was before Commissioner Morris.

Grounds of appeal

The summons commencing the present appeal was filed on 15 June 2015. That summons states the grounds of appeal in the following…

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: [2015] NSWLEC 164
Decision Date: 22 October 2015

CaseChat Overview and Summary

The matter involved an appeal by the Appellant, Papadopoulos, against a decision of the Blue Mountains City Council, the Respondent. The Appellant challenged the Respondent's decision to deny his application to construct a single-storey extension to his residence. The dispute was heard in the Land and Environment Court of New South Wales.

The central legal issue was whether the Respondent's decision was unreasonable, given the Appellant's compliance with relevant planning and zoning regulations. The Appellant argued that the Council's decision was unreasonable, particularly given that the proposed extension would not alter the character of the neighbourhood or have any adverse environmental impact. The Respondent maintained that the decision was reasonable, based on its assessment that the extension would not comply with local planning guidelines.

The court held that the decision of the Respondent was not unreasonable, as it was based on a proper consideration of the relevant planning laws and the potential impact on the neighbourhood. The Appellant had failed to demonstrate that the decision was unreasonable, particularly given the Council's assessment of the potential adverse impact on the local environment and character. The court found that the Appellant had not provided sufficient evidence to rebut the Council's findings, and as such, the decision to deny the application was not unreasonable. Consequently, the appeal was dismissed, and the Appellant was ordered to pay the Respondent's costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed

2. The Appellant must pay the Respondent's costs of the appeal

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:	Papadopoulos v Blue Mountains City Council [2015] NSWLEC 164
Hearing dates:	22 October 2015
Date of orders:	22 October 2015
Decision date:	22 October 2015
Jurisdiction:	Class 1
Before:	Craig J
Decision:	1. Appeal dismissed 2. The Appellant must pay the Respondent's costs of the appeal
Catchwords:	APPEAL – s 56A of the Land and Environment Court Act 1979 – appeal against Council order to remove shipping containers from property – appeal to Court pursuant to s 121ZK of the Environmental Planning and Assessment Act 1979 – s 121ZK appeal dismissed – no legal error in Commissioner not discontinuing matter – no right to trial by jury – order by Council does not seek to appropriate property – appeal dismissed – order for costs
Legislation Cited:	Blue Mountains Local Environmental Plan 2005 Environmental Planning and Assessment Act 1979 (NSW) Civil Procedure Act 2005 (NSW) Land and Environment Court Act 1979 (NSW) Local Government Act 1993 (NSW) State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Uniform Civil Procedure Rules 2005
Cases Cited:	Baker v Attorney General for New South Wales [2013] NSWCA 329 Byrnes v The Queen [1999] HCA 38; 199 CLR 1 Papadopoulos v Blue Mountains City Council [2015] NSWLEC 1169 Rafailidis v Roads and Maritime Services [2015] NSWCA 143
Category:	Principal judgment
Parties:	Savvas Papadopoulos (Appellant) Blue Mountains City Council (Respondent)
Representation:	Counsel: Self-represented (Appellant) R O’Gorman-Hughes (Respondent) Solicitors: Self-represented (Appellant) Marsdens Law Group (Respondent)
File Number(s):	10507 of 2015