Premier State Developments Pty Ltd v North Sydney Council - [1999] NSWLEC 169

Reported Decision: 104 LGERA 215

Land and Environment Court

of New South Wales

CITATION:

Premier State Developments Pty Ltd V North Sydney Council [1999] NSWLEC 169

PARTIES

APPLICANT:
Premier State Developments Pty Ltd

RESPONDENT:
North Sydney Council

NUMBER:

40116 of 1999

CORAM:

Bignold J

KEY ISSUES:

Judicial Review :- Judicial Review - Council resolutions to prepare amending LEP - whether resolutions valid.

LEGISLATION CITED:

Local Government Act 1993 s 367

DATES OF HEARING:

07/15/1999

DATE OF JUDGMENT DELIVERY:

07/23/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J J Bingham (Solicitor)
SOLICITORS:
Deacons Graham and James
RESPONDENT:
Mr M H Tobias (QC)
WITH:
Mr B Preston (Barrister)
SOLICITORS:
Mallesons Stephen Jaques

JUDGMENT:

TABLE OF CONTENTS

A. INTRODUCTION 1-9
B. THE ISSUES RAISED BY THE PLEADINGS 10-19
C. THE VALIDITY OF THE COUNCIL’S 1ST RESOLUTION 20-34
D. THE VALIDITY OF THE COUNCIL’S 2ND RESOLUTION 35-41
E. THE VALIDITY OF THE COUNCIL’S 3RD RESOLUTION 42-48
F. THE VALIDITY OF THE COUNCIL’S 4TH RESOLUTION 49-59

G. DID THE PUBLIC EXHIBITION OF THE DRAFT LEP INVOLVE

IN THE LAND AND Matter No . 40116 of 1999

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 23 July 1999

PREMIER STATE DEVELOPMENTS PTY LTD

Applicant

NORTH SYDNEY COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. By its amended class 4 application, the Applicant challenges the validity of four resolutions passed by the Respondent (the Council) at its meetings held on 6 April 1999; 17 May 1999; 7 June 1999; and 12 July 1999 respectively, all of which concern the Council’s decision to prepare a local environmental plan to amend the North Sydney Local Environmental Plan 1989 (the draft LEP) to generally prohibit residential development in the Commercial Zone comprising the North Sydney Central Business District (CBD).

2. The Applicant holds an option to purchase property known as No 71 Walker Street, North Sydney, in respect of which property it has lodged with the Council a development application to redevelop the land with a 27 storey building comprising 53 residential units. On 24 March 1999, the Applicant filed an appeal in this Court against the Council’s deemed refusal of the development application. The appeal has been fixed for hearing on 9, 10 and 11 August 1999.

3. The draft LEP has a material and obvious effect upon the Applicant’s pending class 1 proceeding. If the draft LEP is made by the Minister by the time the appeal is heard, the development proposal will be absolutely prohibited development (EP&A Act s 76B(a)). Even if the draft LEP has not progressed beyond its present draft status, it will be a relevant consideration in the evaluation of the development application (EP&A Act s 79C).

4. It was in these circumstances that expedition was sought and granted to the hearing of the present proceedings.

5. In its original form, the present application (which was filed on 17 June 1999) claimed declaratory relief in respect of the relevant Council’s…

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: [1999] NSWLEC 169
Decision Date: 23 July 1999

CaseChat Overview and Summary

The Applicant, Premier State Developments Pty Ltd, sought a declaration in the Land and Environment Court of New South Wales that four resolutions passed by the Respondent, North Sydney Council, were invalid. These resolutions concerned the Council's decision to prepare a local environmental plan to generally prohibit residential development in the North Sydney Central Business District. The Applicant, which holds an option to purchase property in the area, had lodged a development application with the Council that would be affected by the draft local environmental plan. The Court was required to decide whether the Council's resolutions were valid and if the public exhibition of the draft local environmental plan complied with the Environmental Planning and Assessment Act 1979 (EP&A Act).

The Court found that the Council's first resolution was valid as proper notice was given to Councillors. The Court rejected the Applicant's argument that the notice was misleading, stating that the notice clearly indicated the business to be transacted at the meeting. The Court held that the Council's second resolution was invalid as the Council had not considered all submissions made in response to the public exhibition of the draft local environmental plan, including those requesting a public hearing. However, the Court found that the legal deficiency was cured by the subsequent action taken by the Council as reflected in the third and/or fourth resolutions.

The Court also rejected the Applicant's arguments that the third and fourth resolutions were invalid, finding that the Council had properly considered the submissions and that the resolutions were not misleading. Lastly, the Court found that the public exhibition of the draft local environmental plan did not involve non-compliance with section 66 of the EP&A Act, as the Applicant's claims regarding the exhibition of other documents and statements were without merit.

In conclusion, the Court dismissed the Applicant's amended application, stating that apart from the invalidity of the second resolution, which was cured by subsequent resolutions, the Applicant had failed to establish its claims. The Court ordered the amended application be dismissed, exhibits be returned, and the question of costs be reserved.

Orders