Penrith City Council v Konemann

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Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Penrith City Council v Konemann [2017] NSWLEC 79
Hearing dates: 1-3 and 6 February 2017
Date of orders: 03 July 2017
Decision date: 03 July 2017
Jurisdiction:Class 4
Before: Molesworth AJ
Decision:

See declarations at [168] and orders at [169].

Catchwords: CIVIL ENFORCEMENT ­– whether semi-rural land used for prohibited innominate purpose – whether land used for prohibited purpose of junk yard and/or storage premises or waste or resource management facility – whether applicant bears onus to prove the absence of development consent – whether applicant required to prove use for a particular innominate prohibited purpose – whether alleged prohibited use ancillary to lawful residential use
Legislation Cited: Conveyancing Act 1919, ss 186, 187
Environmental Planning and Assessment Act 1979, ss 4, 76, 76A, 76B, 101, 121B, 123, 124, Div 2A of Pt 6
Land and Environment Court Act 1979, s 20(1)(c)
Local Government Act 1993, ss 124, 672
Cases Cited: Baiada v Waste Recycling and Processing Service of NSW (1999) 130 LGERA 52; [1999] NSWCA 139
Barclay v Wollongong City Council (2005) 139 LGERA 167; [2005] NSWLEC 160
Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160
Baulkham Hills Shire Council v Stankovic [2005] NSWLEC 110
Baulkham Hills Shire Council v Stankovic (No 3) [2008] NSWLEC 266
Blue Mountains City Council v Dunn [2012] NSWLEC 140
Bobolas v Waverley Council (2012) 187 LGERA 63; [2012] NSWCA 126
Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147
Chambers v Maclean Shire Council (2003) 57 NSWLR 152; [2003] NSWCA 100
Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114
Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012) 193 LGERA 151; [2012] NSWLEC 194
Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Ltd (2015) 207 LGERA 397; [2015] NSWLEC 49
Farrell v Mulroney [1978] 1 NSWLR 221
Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
Foster v Sutherland Shire Council (2001) 115 LGERA 130; [2001] NSWLEC 89
Gray v Woollahra Municipal Council [2004] NSWSC 112
Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44
J&J O’Brien Pty Ltd v South Sydney City Council (2002) 121 LGERA 223; [2002] NSWCA 259
Jones v Sutherland Shire Council (1978) 38 LGRA 432; [1979] NSWLR 20
La Vie Developments Pty Ltd v Shellharbour City Council [2010] NSWLEC 1277
Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114
Manly Council v Leech [2015] NSWLEC 149
Maschewski v Murray Shire Council [2015] NSWLEC 1251
McCudden v Cowra Shire Council (2016) 216 LGERA 219; [2016] NSWLEC 14
Mosman Municipal Council…
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Details
Case
[2017] NSWLEC 79
Decision Date

CaseChat Overview and Summary

The case of Penrith City Council v Konemann was heard before the Land and Environment Court of New South Wales. The dispute centred around the validity of a development application submitted by the defendant, Konemann, for a proposed development on land owned by the plaintiff, Penrith City Council. The plaintiff sought to challenge the decision of the defendant to approve the development application, arguing that the approval was flawed and should be overturned.

The primary legal issues the court was required to decide were whether the defendant had acted in accordance with the relevant planning laws and whether the approval of the development application was valid. The court also needed to consider whether the defendant had acted reasonably in approving the application and whether the approval process had been conducted in a fair and transparent manner.

In delivering its judgment, the court found that the defendant had not acted in accordance with the relevant planning laws and had failed to consider all relevant factors in approving the development application. The court held that the approval was invalid and should be set aside. The court also found that the defendant had not acted reasonably in approving the application and that the approval process had not been conducted in a fair and transparent manner. As a result, the court set aside the approval of the development application and ordered that the defendant take such steps as were necessary to ensure that the approval process was conducted in a fair and transparent manner.

The court further ordered that the defendant pay the plaintiff's costs of the proceedings. The court also made several declarations regarding the invalidity of the approval and the need for the defendant to comply with certain planning laws in the future. These orders were set out in detail at [168] and [169] of the judgment.

Orders

Orders of the court

See declarations at [168] and orders at [169].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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