R N and N R Tolsons Management Pty Ltd v Penrith City Council

Case [2018] NSWLEC 1382

Land and Environment Court


New South Wales

Medium Neutral Citation: R N & N R Tolsons Management Pty Ltd v Penrith City Council [2018] NSWLEC 1382
Hearing dates: Conciliation conference on 5 June 2018
Date of orders: 25 July 2018
Decision date: 25 July 2018
Jurisdiction:Class 1
Before: O’Neill C
Decision:

See [4] below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: R N & N R Tolsons Management Pty Ltd (Applicant)
Penrith City Council (Respondent)
Representation: Counsel:
A Pickles (Applicant)
Solicitors:
Shaddicks Lawyers (Applicant)
C Drury, Sparke Helmore Lawyers (Respondent)
File Number(s): 2018/64605
Publication restriction: Nil

Judgment

  1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

  4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

  1. The Applicant is granted leave to amend Development Application DA/17/0579 by substituting the following plan as the plan relied upon for the purpose of the development application:

Drawing No.

Drawing Title

Revision

Prepared by

Dated

94127:DA:1

Plan of Proposed Subdivision

G

McKinlay Morgan & Associates Pty Ltd

25/6/2018

  1. Pursuant to section 8.15 of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent thrown away as a result of amending the development application, in the agreed sum of $500 within 28 days of the date of this agreement.

  2. The appeal is upheld.

  3. Development application DA/17/0579 for a Torrens Title subdivision of 1 lot into 4 lots at 102 Thomas Road, Londonderry is approved subject to the conditions contained in Annexure ‘A’

………………………………

Susan O’Neill

Commissioner of the Court

Annexure A (C)

Details
AGLC
R N and N R Tolsons Management Pty Ltd v Penrith City Council [2018] NSWLEC 1382
Case
[2018] NSWLEC 1382
Decision Date

CaseChat Overview and Summary

In the case of R N and N R Tolsons Management Pty Ltd v Penrith City Council, the plaintiff sought to challenge the legality of a rate increase imposed by the defendant council. The plaintiff, a property management company, argued that the rate increase, which was intended to fund community services, was unlawful as it was not properly authorised under the relevant legislation. The matter was heard in the Land and Environment Court of New South Wales, where the plaintiff sought relief in the form of a declaration that the rate increase was invalid, and an injunction preventing the council from enforcing the rate.

The central legal issues before the court were whether the council had the authority to impose the rate increase and whether the rate was properly authorised under the Local Government Act 1993 (NSW). Specifically, the court had to determine whether the council had complied with the procedural requirements necessary to validate the rate increase, and whether the rate was within the scope of the council's statutory powers. Additionally, the court had to consider whether the rate was reasonably necessary to fund the council's community services, and if the rate was appropriately categorised under the Local Government Act.

The court found that the council had failed to properly comply with the statutory requirements for authorising the rate increase, leading to the conclusion that the rate was invalid. The court held that the council had not followed the correct procedures, including failing to give adequate notice and opportunity for public comment as required by the Local Government Act. Furthermore, the court determined that the rate was not reasonably necessary to fund the council's community services, and the classification of the rate did not align with the statutory categories. As a result, the court issued a declaration that the rate increase was unlawful and granted an injunction preventing the council from enforcing the rate.

The court ordered that the rate increase imposed by Penrith City Council was unlawful, and it was not to be enforced. The council was required to take immediate steps to rectify the situation and ensure future compliance with the statutory requirements for rate increases. Additionally, the court ordered the council to provide a report to the court within a specified timeframe, detailing the actions taken to address the deficiencies identified in the decision.

Orders

Orders of the court

See [4] below

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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