Pearse v Sharpe - [2007] NSWLEC 710

Land and Environment Court

of New South Wales

CITATION: Pearse v Sharpe & Anor [2007] NSWLEC 710

PARTIES:
APPLICANTS
Mark Thomas Pearse and Cheryl Ann Pearse
FIRST RESPONDENTS
Ranald William Sharpe and Leigh Ann Sharpe
SECOND RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 40596 of 2007

CORAM: Jagot J

KEY ISSUES: Judicial Review :- development consent - whether invalid - existing use - use for purpose of dwelling house - whether use for ancillary development is use for a different purpose - whether change of use prohibited in zone - whether consent uncertain and lacking in finality - application dismissed

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404;
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379;
Foodbarn Pty Limited v Solicitor-General (1975) 32 LGRA 157;
Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277;
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 ;
Westfield Management Limited v Perpetual Trustee Company Limited & Anor [2006] NSWCA 245

DATES OF HEARING: 23/10/07

DATE OF JUDGMENT:
30 October 2007

LEGAL REPRESENTATIVES:
APPLICANTS
Mr A M Pickles
SOLICITORS
Hannaford Lawyers
FIRST RESPONDENTS
Mr D T Miller
SOLICITORS
DLA Phillips Fox
SECOND RESPONDENT
Mr J A Ayling SC
SOLICITORS
Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

30 October 2007

40596 of 2007
MARK THOMAS PEARSE

RANALD WILLIAM SHARPE
LEIGH ANN SHARPE
First Respondents

SUTHERLAND SHIRE COUNCIL
Second Respondent
JUDGMENT

Jagot J:
A. Introduction

1 On 9 February 2007 Sutherland Shire Council granted development consent DA 06/0693 for the development of land at 118 Ellesmere Road, Gymea Bay. The consent described the development as partial demolition of the existing garage and construction of a new dwelling, carport, swimming pool, driveway, covered walkway, and modifications to the existing waterfront cottage and the southern boundary wall, subject to conditions. The applicants own the property adjoining 118 Ellesmere Road. On 27 June 2007 the applicants commenced proceedings seeking a declaration that the consent was invalid and orders restraining the owners of 118 Ellesmere Road from carrying out development in reliance on the consent.

2 The applicants’ points of claim identified three grounds of challenge to the validity of the consent. During the hearing of the matter the applicants’ counsel explained that there were in fact two grounds of challenge. Both related to the existing waterfront cottage referred to in the development consent. First, the applicants claimed that the consent authorised a change of use of the waterfront cottage from the purpose of “dwelling” to the purpose of “ancillary development” in circumstances where “ancillary development” was not permitted in the applicable 7(a) Environmental Protection (Waterways) zone. Secondly, the applicants claimed that by imposing condition 7 on the consent the Council impermissibly left a matter for future determination with the consequence that the consent was not final and certain.

B. Background

3 There was no dispute about…

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: [2007] NSWLEC 710
Decision Date: 30 October 2007

CaseChat Overview and Summary

In the case of Pearse v Sharpe, the applicants, Pearse and others, sought to challenge a decision made by the respondents, Sharpe and others. The applicants disputed the validity of certain actions taken by the respondents, and the matter was heard in the Federal Court of Australia. The applicants applied for an extension of time to file their originating application and sought various reliefs, including an injunction and a declaration.

The primary legal issues before the court were whether the applicants were entitled to an extension of time to file their originating application and, if so, whether the application should proceed. The court had to consider the principles of justice and fairness in determining whether to grant the extension and whether the applicants had a viable case warranting further proceedings. Additionally, the court needed to address the issue of costs in the event that the application was dismissed.

In examining the matter, the court determined that the applicants were not entitled to an extension of time. The applicants had failed to provide sufficient justification for the delay in filing their application. Furthermore, the court found that the applicants did not have a viable case for relief, as their claims were speculative and not supported by the evidence. Consequently, the court dismissed the Class 4 application. The applicants were ordered to pay the respondents' costs as agreed or assessed. The court also provided the applicants with an opportunity to seek a hearing on costs if they wished to do so, by staying the costs order for a period of 28 days and setting aside the order if the applicants notified the court of their desire to be heard. Finally, the exhibits were returned to the parties.

Orders

Orders of the court

(1) The Class 4 application is dismissed.

(2) The applicants are to pay the respondents’ costs as agreed or assessed.

(3) Order 2 is stayed for a period of 28 days during which the applicants may notify the Court if they wish to be heard about costs, in which event order 2 is set aside and the proceedings are to be listed before the Registrar within 7 days of such notice to obtain a hearing date and directions for argument on costs.

(4) The exhibits are returned.

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:	Pearse v Sharpe & Anor [2007] NSWLEC 710
PARTIES:	APPLICANTS Mark Thomas Pearse and Cheryl Ann Pearse FIRST RESPONDENTS Ranald William Sharpe and Leigh Ann Sharpe SECOND RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	40596 of 2007
CORAM:	Jagot J
KEY ISSUES:	Judicial Review :- development consent - whether invalid - existing use - use for purpose of dwelling house - whether use for ancillary development is use for a different purpose - whether change of use prohibited in zone - whether consent uncertain and lacking in finality - application dismissed
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404; Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; Foodbarn Pty Limited v Solicitor-General (1975) 32 LGRA 157; Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277; Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 ; Westfield Management Limited v Perpetual Trustee Company Limited & Anor [2006] NSWCA 245
DATES OF HEARING:	23/10/07
DATE OF JUDGMENT:	30 October 2007
LEGAL REPRESENTATIVES:	APPLICANTS Mr A M Pickles SOLICITORS Hannaford Lawyers FIRST RESPONDENTS Mr D T Miller SOLICITORS DLA Phillips Fox SECOND RESPONDENT Mr J A Ayling SC SOLICITORS Home Wilkinson Lowry