Paul Monteleone v Ryde City Council - [2005] NSWLEC 549

Land and Environment Court

of New South Wales

CITATION:
Paul Monteleone v Ryde City Council [2005] NSWLEC 549

PARTIES:
APPLICANT:
Paul Monteleone
RESPONDENT:
Ryde City Council

FILE NUMBER(S):
10745 of 2005

CORAM:
Watts C at 1

KEY ISSUES:
Development Application :- Social and economic impacts in the locality
Desired future character of the locality and proximity to sensitive land uses
Public interest.

LEGISLATION CITED:
Ryde Planning Scheme Ordinance 1979, (RPSO)
Draft Ryde Local Environmental Plan No. 123, (DLEP123) and · Draft Ryde Development Control Plan No 40, (DDCP40)

CASES CITED:
Broad v Brisbane City Council (1986) 59 LGRA 296;
Dixon v Burwood Council [2002] NSWLEC 190;
Jim Marinos v Ashfield Municipal Council [2005] NSWLEC 2;
Liu v Fairfield Council [1996] NSWLEC 272 ;
Lonza v Fairfield City Council, (Unreported decision dated 9 December 1996);
Markakis v Ashfield Municipal Council [2004] NSWLEC 383;
Martyn v Hornsby Shire Council [2004] NSWLEC 614;
Mortimer v Sutherland Shire Council [2005] NSWLEC 349;
New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154;
Perry Properties Pty Limited v Ashfield Council (No 2) [2001] NSWLEC 62;
Venus Enterprises Pty Limited v Parramatta City Council (1981) 43 LGRA 67;
Zhang v Ashfield Municipal Council [2001] NSWCA 167

DATES OF HEARING: 23/09/2005

DATE OF JUDGMENT:

10/05/2005

LEGAL REPRESENTATIVES:
APPLICANT:
Mr T G Howard, barrister
SOLICITORS:
N/A
RESPONDENT:
Mr P Tomasetti, barrister instructed by
Ms J A Walsh, solicitor
SOLICITORS:
Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

5 October 2005

10745 of 2005 - Paul Monteleone v Ryde City Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979; against the deemed refusal by Ryde City Council (the council) of a development application for an adult bookshop involving a shop fit out and change of use at No. 100 Blaxland Road, Ryde, being Lot 1, DP 776548.

2 I visited the land in company with the parties on the morning of the hearing.

3 I have concluded that the proposed change of use from a commercial use to adult bookshop should succeed on merit when considered under s 79C of the Environmental Planning and Assessment Act 1979.

The land

4 The land is situated on the southwestern corner of Blaxland Road and Church Street, Ryde, and has a frontage to Blaxland Road of about 27.155m and to Church St of about 8.405m, giving an area of some 288m2.

5 Erected on the land is a two-storey commercial/ retail building, formerly occupied by the Ryde Post Office. The ground floor is used as a restaurant, and presently, the first floor is vacant. There is a small parking area to the northwest of the building with vehicular access from Blaxland Road. The Telstra telephone exchange flanks the land on two sides.

6 The land is within the Ryde Town Centre, and land in the immediate vicinity is used for commercial, retail, residential and utility…

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: [2005] NSWLEC 549
Decision Date: 10/05/2005

CaseChat Overview and Summary

Paul Monteleone has appealed against a decision made by the Ryde City Council regarding the assessment of a development application for a residential property. The case was heard by the Land and Environment Court of New South Wales. The central issue in this appeal revolves around the interpretation and application of the Environmental Planning and Assessment Act 1979 and whether the council correctly exercised its discretion in approving the development application. Specifically, the court needed to determine if the council had acted lawfully and whether the decision was based on proper consideration of relevant factors.

The court considered whether the council's decision was made in accordance with the statutory requirements and whether the council had correctly applied the relevant provisions of the Environmental Planning and Assessment Act. The judge examined the evidence provided to the council, the applicable planning instruments, and the statutory criteria for assessing development applications. The court found that the council had failed to adequately consider certain statutory requirements and had not applied the law correctly in reaching its decision. Consequently, the appeal was upheld, and the council's decision was quashed.

In light of the findings, the court ordered that the appeal be upheld and the decision of the Ryde City Council be set aside. The matter was remitted back to the council for reconsideration in accordance with the law. The court's decision emphasised the importance of proper adherence to statutory requirements and the necessity for local councils to exercise their discretion fairly and in accordance with the law when making decisions on development applications.

Orders

Orders of the court

60 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

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.

CITATION:	Paul Monteleone v Ryde City Council [2005] NSWLEC 549
PARTIES:	APPLICANT: Paul Monteleone RESPONDENT: Ryde City Council
FILE NUMBER(S):	10745 of 2005
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Social and economic impacts in the locality Desired future character of the locality and proximity to sensitive land uses Public interest.
LEGISLATION CITED:	Ryde Planning Scheme Ordinance 1979, (RPSO) Draft Ryde Local Environmental Plan No. 123, (DLEP123) and · Draft Ryde Development Control Plan No 40, (DDCP40)
CASES CITED:	Broad v Brisbane City Council (1986) 59 LGRA 296; Dixon v Burwood Council [2002] NSWLEC 190; Jim Marinos v Ashfield Municipal Council [2005] NSWLEC 2; Liu v Fairfield Council [1996] NSWLEC 272 ; Lonza v Fairfield City Council, (Unreported decision dated 9 December 1996); Markakis v Ashfield Municipal Council [2004] NSWLEC 383; Martyn v Hornsby Shire Council [2004] NSWLEC 614; Mortimer v Sutherland Shire Council [2005] NSWLEC 349; New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154; Perry Properties Pty Limited v Ashfield Council (No 2) [2001] NSWLEC 62; Venus Enterprises Pty Limited v Parramatta City Council (1981) 43 LGRA 67; Zhang v Ashfield Municipal Council [2001] NSWCA 167
DATES OF HEARING:	23/09/2005
DATE OF JUDGMENT:	10/05/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr T G Howard, barrister SOLICITORS: N/A RESPONDENT: Mr P Tomasetti, barrister instructed by Ms J A Walsh, solicitor SOLICITORS: Pike Pike and Fenwick