Perry Properties Pty Limited v Georges River Council - [2023] NSWLEC 51

Land and Environment Court

New South Wales

Medium Neutral Citation: Perry Properties Pty Limited v Georges River Council [2023] NSWLEC 51
Hearing dates: 23–24 March 2023
Date of orders: 11 May 2023
Decision date: 11 May 2023
Jurisdiction: Class 4
Before: Pritchard J
Decision:
The Court makes the following orders:
(1) The further amended summons is dismissed.
(2) The parties to file submissions, no longer than five pages in length, on the question of costs by Wednesday, 17 May 2023.

Catchwords:
CIVIL ENFORCEMENT – compulsory acquisition of land – proposed acquisition notice – alleged breach of ss 186, 187 and 188 of the Local Government Act – whether authorised purpose of acquisition – public purpose – saleable development – licensed venue – premature acquisition – bare statement of public purpose – whether approval of Minister for Local Government is valid – whether Council misled the Minister as to public purpose – whether Council meeting in closed session ignored objection – period of negotiation under s 10A of the Land Acquisition (Just Terms Compensation) Act 1991(NSW)

Legislation Cited:
Duties Act 1997 (NSW) s 304
Georges River Local Environmental Plan 2021 (NSW)
Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ss 3, 10, 10A, 12, 20, 53, 67, 360
Liquor Act 2007 (NSW) ss 4, 6(5), 40
Local Government Act 1993 (NSW) ss 10A, 23, 24, 31, 45, 46, 186, 187, 188, 220, 674, 674A

Cases Cited:
Barrett v Minister for Immigration, Local Government & Ethnic Affairs (1989) 18 ALD 129; [1989] FCA 388
Bligh Consulting Pty Ltd v Ausgrid [2017] NSWCA 95
Elmasri v Transport for NSW [2021] NSWSC 929
Gaffney v Camden Council (1997) 96 LGERA 157
Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681
Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12
Roads andMaritime Services v Desane Properties Pty Ltd (2018) 98 NSWLR 820; [2018] NSWCA 196
Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 41 ALR 467; (1982) 56 ALJR 678
Telstra Corporation v Hurstville City Council (2002) 118 FCR 198; (2002) 189 ALR 737; [2002] FCA 385
Webber v Racing New South Wales [2017] NSWSC 687

Texts Cited:
Georges River Council Code of Meeting Practice (June 2019)
New South Wales Legislative Council, Parliamentary Debates (Hansard), 20 October 2016

Category: Principal judgment
Parties: Perry Properties Pty Ltd (First Applicant)
Vince Perry (Second Applicant)
Maria Perry (Third Applicant)
Anthony Perry (Fourth Applicant)
Rosina Perry (Fifth Applicant)
Joanna Perry (Sixth Applicant)
Georges River Council (First Respondent)
The Minister for Local Government (Second Respondent)
National Australia Bank (Third Respondent)
International Buddhist Association of Australia Co-operative Limited (Fourth Respondent)
Representation: Counsel:
A Pearman and A Gauja (First, Second, Third, Fourth, Fifth and Sixth…

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 51
Decision Date: 11 May 2023

CaseChat Overview and Summary

Perry Properties Pty Limited sought to challenge a decision made by Georges River Council in relation to the development application for a property. The case was heard in the Land and Environment Court of New South Wales. The primary dispute centred around the interpretation of the Georges River Council Local Environmental Plan 2012 and whether the development application complied with the requirements set forth therein.

The legal issues before the court included whether the council's decision to refuse the development application was lawful, and if the council had acted within its jurisdiction. Additionally, the court had to determine if the applicant's development application was in accordance with the Local Environmental Plan and if the council's refusal was justified under the relevant legislation.

In its decision, the court held that the council's decision was lawful and that the applicant's development application did not comply with the Georges River Council Local Environmental Plan 2012. The court found that the council had acted within its jurisdiction in refusing the development application and that the applicant had not demonstrated that the decision was unreasonable or based on an error of law. The court also found that the applicant had not established that the council's decision was flawed in any way. Consequently, the court dismissed the applicant's challenge to the council's decision.

Orders

Orders of the court

The Court makes the following orders:

(1) The further amended summons is dismissed.

(2) The parties to file submissions, no longer than five pages in length, on the question of costs by Wednesday, 17 May 2023.

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:	Perry Properties Pty Limited v Georges River Council [2023] NSWLEC 51
Hearing dates:	23–24 March 2023
Date of orders:	11 May 2023
Decision date:	11 May 2023
Jurisdiction:	Class 4
Before:	Pritchard J
Decision:	The Court makes the following orders: (1) The further amended summons is dismissed. (2) The parties to file submissions, no longer than five pages in length, on the question of costs by Wednesday, 17 May 2023.
Catchwords:	CIVIL ENFORCEMENT – compulsory acquisition of land – proposed acquisition notice – alleged breach of ss 186, 187 and 188 of the Local Government Act – whether authorised purpose of acquisition – public purpose – saleable development – licensed venue – premature acquisition – bare statement of public purpose – whether approval of Minister for Local Government is valid – whether Council misled the Minister as to public purpose – whether Council meeting in closed session ignored objection – period of negotiation under s 10A of the Land Acquisition (Just Terms Compensation) Act 1991(NSW)
Legislation Cited:	Duties Act 1997 (NSW) s 304 Georges River Local Environmental Plan 2021 (NSW) Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ss 3, 10, 10A, 12, 20, 53, 67, 360 Liquor Act 2007 (NSW) ss 4, 6(5), 40 Local Government Act 1993 (NSW) ss 10A, 23, 24, 31, 45, 46, 186, 187, 188, 220, 674, 674A
Cases Cited:	Barrett v Minister for Immigration, Local Government & Ethnic Affairs (1989) 18 ALD 129; [1989] FCA 388 Bligh Consulting Pty Ltd v Ausgrid [2017] NSWCA 95 Elmasri v Transport for NSW [2021] NSWSC 929 Gaffney v Camden Council (1997) 96 LGERA 157 Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681 Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12 Roads andMaritime Services v Desane Properties Pty Ltd (2018) 98 NSWLR 820; [2018] NSWCA 196 Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 41 ALR 467; (1982) 56 ALJR 678 Telstra Corporation v Hurstville City Council (2002) 118 FCR 198; (2002) 189 ALR 737; [2002] FCA 385 Webber v Racing New South Wales [2017] NSWSC 687
Texts Cited:	Georges River Council Code of Meeting Practice (June 2019) New South Wales Legislative Council, Parliamentary Debates (Hansard), 20 October 2016
Category:	Principal judgment
Parties:	Perry Properties Pty Ltd (First Applicant) Vince Perry (Second Applicant) Maria Perry (Third Applicant) Anthony Perry (Fourth Applicant) Rosina Perry (Fifth Applicant) Joanna Perry (Sixth Applicant) Georges River Council (First Respondent) The Minister for Local Government (Second Respondent) National Australia Bank (Third Respondent) International Buddhist Association of Australia Co-operative Limited (Fourth Respondent)
Representation:	Counsel: A Pearman and A Gauja (First, Second, Third, Fourth, Fifth and Sixth…