Peake Pearce Pty Ltd v Georges River Council - [2023] NSWLEC 89

Land and Environment Court

New South Wales

Medium Neutral Citation: Peake Pearce Pty Ltd v Georges River Council [2023] NSWLEC 89
Hearing dates: 25 August 2023
Date of orders: 25 August 2023
Decision date: 25 August 2023
Jurisdiction: Class 4
Before: Duggan J
Decision:
See paragraphs 42 to 44

Catchwords:
JUDICIAL REVIEW – Uniform Civil Procedure Rules r 59.10(3) – leave granted to extend time for commencement of proceedings – Environmental Planning and Assessment Act 1979 (NSW) s 4.16(3) – whether Council had power to impose deferred commencement condition upon modification – modification of development consent is not grant of development consent – declaration made that modification of development consent invalid

Legislation Cited:
COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous Act) 2020 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Environmental Planning and Assessment Regulation 2020 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243
Project Blue Sky In v Australian Broadcasting Authority (1998) 194 CLR 355
Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146

Category: Principal judgment
Parties: Peake Pearce Pty Ltd ACN 666 871 334 (Applicant)
Georges River Council (Respondent)
Representation:
Counsel:
A M Pickles SC and A G Pearman (Applicant)
Submitting appearance (Respondent)
Solicitors:
Madison Marcus (Applicant)
Submitting appearance (Respondent)

File Number(s): 2023/182506
Publication restriction: No

EX TEMPORE JUDGMENT

HER HONOUR: The Applicant seeks a declaration that a modification of a development consent granted by the Respondent (the Council) is invalid. The Applicant also seeks an order pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to extend the time for the brining of these proceedings.
The Council has entered a submitting appearance in these proceedings save as to costs.
At the hearing of this matter the Applicant was granted leave to file in Court an Amended Summons (Judicial Review) which changed the name of the Applicant together with some further changes to the grounds which can be relevantly described as formal changes or administrative in substance (the Amended Summons).
The Applicant indicated that it did not press the declarations outlined at pars 3 and 4 of the Amended Summons. As a consequence the Applicant seeks the following relief in these proceedings namely:

1 An order under rule 59.10(2) Uniform Civil Procedures Rules 2005 (“UCPR”) that time to commence proceedings specified in rule 59.10(1) UCPR be extended.
2   A declaration that the modification of the development consent DA2016/0366 granted by the Respondent on 2 June 2018 to alter the drainage design for an approved residential flat building containing 25 units with basement carparking at lots 289, 290 and 291 DP 36537 18-20 Peake Parade and 2 Pearce Avenue Peakhurst (“MOD2018/0027”) was invalid and of no effect.
…
5   Costs
6    Such further or other order as the Court thinks fit.

Facts

The Applicant is the registered proprietor of Lots 289, 290…

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: [2023] NSWLEC 89
Decision Date: 25 August 2023

CaseChat Overview and Summary

Peake Pearce Pty Ltd brought an action against Georges River Council, challenging the council’s decision to impose a development charge under the Development Act 1993. The dispute centred on whether the council had correctly exercised its discretion in imposing the charge on the development of the plaintiff’s property, specifically the amount of the charge and the council’s methodology in determining it. The case was heard in the Land and Environment Court of New South Wales.

The court had to decide whether the council had acted lawfully and reasonably in imposing the development charge, and whether the amount of the charge was justified. This involved examining the relevant statutory provisions and whether the council had adhered to the legislative requirements in determining the charge. The court also needed to consider whether the council had taken into account the appropriate factors and whether the charge was proportionate to the benefits conferred by the development.

The court found that the council had exercised its discretion in imposing the development charge in accordance with the law. The decision was based on a comprehensive review of the council’s assessment, which included an analysis of the benefits conferred by the development and the methodology used to calculate the charge. The court determined that the council had appropriately considered the relevant factors and that the charge was proportionate to the benefits. Consequently, the court dismissed the plaintiff’s appeal against the council’s decision.

The court’s final orders were that the appeal by Peake Pearce Pty Ltd against the decision of the Georges River Council was dismissed, with the plaintiff to pay the respondent’s costs of the appeal. Additionally, the court ordered that the plaintiff pay the respondent’s costs of the originating application, and further costs of the appeal to be taxed if not agreed.

Orders

Orders of the court

See paragraphs 42 to 44

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:	Peake Pearce Pty Ltd v Georges River Council [2023] NSWLEC 89
Hearing dates:	25 August 2023
Date of orders:	25 August 2023
Decision date:	25 August 2023
Jurisdiction:	Class 4
Before:	Duggan J
Decision:	See paragraphs 42 to 44
Catchwords:	JUDICIAL REVIEW – Uniform Civil Procedure Rules r 59.10(3) – leave granted to extend time for commencement of proceedings – Environmental Planning and Assessment Act 1979 (NSW) s 4.16(3) – whether Council had power to impose deferred commencement condition upon modification – modification of development consent is not grant of development consent – declaration made that modification of development consent invalid
Legislation Cited:	COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous Act) 2020 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2020 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243 Project Blue Sky In v Australian Broadcasting Authority (1998) 194 CLR 355 Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146
Category:	Principal judgment
Parties:	Peake Pearce Pty Ltd ACN 666 871 334 (Applicant) Georges River Council (Respondent)
Representation:	Counsel: A M Pickles SC and A G Pearman (Applicant) Submitting appearance (Respondent) Solicitors: Madison Marcus (Applicant) Submitting appearance (Respondent)
File Number(s):	2023/182506
Publication restriction:	No