Perry Properties Pty Ltd v Ashfield Council (No 2) - [2001] NSWLEC 62

Reported Decision: 113 LGERA 301

Land and Environment Court

of New South Wales

CITATION: Perry Properties Pty Ltd v Ashfield Council (No 2) [2001] NSWLEC 62

PARTIES:
APPLICANT:
Perry Properties Pty Ltd
RESPONDENT:
Ashfield Council (No 2)

FILE NUMBER(S): 10513 of 1999

CORAM: Bignold J

KEY ISSUES: Section 56A Appeal :- Remitted proceedings requiring re-determination of development appeal - social impact of proposed brothel development - constructive failure to consider

LEGISLATION CITED: Land and Environment Court Act 1979 s 56A, s 38(4)
Environmental Planning and Assessment Act 1979, s 79C

CASES CITED: Broad v Brisbane City Council (1986) 59 LGRA 296;
Graham Richter and Associates Pty Ltd v Campbelltown City Council (unreported 10 July 2000);
Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402;
Leichhardt Municipal Council v Daniel Callaghan Pty Ltd (1982) 56 LGRA;
Liu v Fairfield Council (1996) NSWLEC 272 ;
Minister Administering the Heritage Act 1977 v Haddad (unreported 4 February 1991);
Novak v Woodville City Council (1990) 70 LGERA 233;
Venus Enterprises v Parramatta City Council (1981) 43 LGERA 67

DATES OF HEARING: 23/03/01

DATE OF JUDGMENT:
04/04/2001

LEGAL REPRESENTATIVES:
APPLICANT:
Mr S Austin QC
SOLICITORS
Utter Webster and Evans
RESPONDENT:
Mr B McClintock SC with Mr S Flanigan
SOLICITORS
Deacons Graham and James

JUDGMENT:

IN THE LAND AND

Matter No. 10513 of 1999

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

4 April 2001

PERRY PROPERTIES PTY LIMITED

Applicant

ASHFIELD COUNCIL (NO. 2)

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. This is an appeal pursuant to the Land and Environment Court Act 1979, s 56A (the LEC Act) against the decision of Commissioner Bly delivered on 3 November 2000 allowing an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) and granting development consent, subject to conditions, for the establishment of a brothel at premises known as Nos 246 and 246A Parramatta Road, Ashfield.

2. The Commissioner’s decision was given in proceedings which had been remitted to him by orders made on 21 September 2000 by Cowdroy J following a successful appeal pursuant to the LEC Act, s 56A brought by the Applicant against the Commissioner’s original decision refusing development consent.

3. The present appeal which is brought by the Council is limited to error of law. In its Notice of Motion instituting the appeal, the Council, conformably to the Rules of Court (Pt 13 r 37) had stated five separate grounds of appeal, but on the hearing of the appeal did not press two of those grounds, leaving the following three grounds (upon which it relies):
(i.) The Commissioner erred in law in holding that the component of his decision which led to the refusal of the application (which was not, according to Mr Justice Cowdroy, supportable on the evidence) was severable from the remainder of the Commissioner’s decision and therefore the appeal could be upheld.
(ii.) The Commissioner erred in law in finding that his…

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: [2001] NSWLEC 62
Decision Date: 04/04/2001

CaseChat Overview and Summary

This appeal concerned a decision by a Commissioner of the Land and Environment Court to grant development consent for the establishment of a brothel at premises in Ashfield, New South Wales. The decision of the Commissioner was itself an appeal from an earlier decision by the same Commissioner to refuse development consent. The applicant, Perry Properties Pty Ltd, had appealed the first decision of the Commissioner under the Land and Environment Court Act 1979, s 56A, and the appeal was allowed. The Commissioner was ordered to re-determine the development appeal in accordance with the appeal judgment. The Council then appealed the Commissioner's decision to grant development consent on the remitted proceedings. The Council's appeal was limited to error of law. The applicant submitted that the Commissioner had properly considered the Council's case based upon the alleged "adverse social impact" of the proposed development, but that his decision simply had gone against the Council on this point and was legally unimpeachable. The Council submitted that the Commissioner had misdirected himself as to the task properly required of him on the remitted case and that in consequence he had come to a decision that was legally flawed. The court found that the Commissioner had misdirected himself in the remitted proceedings, and that the Commissioner's misunderstanding of his task had led to a flawed determination of the remitted proceedings. The court found that the Commissioner had failed to properly consider the social impact of the proposed development. The Commissioner's misunderstanding of his task on the remitted case was likely the source of this error. The court found that the Commissioner's further determination was flawed by this legal error. The appeal was allowed, the Commissioner's decision was set aside, and the proceedings were remitted to the Commissioner for re-determination of the development appeal.

Orders