Randwick City Council v Scarf - [2011] NSWLEC 167

Land and Environment Court

New South Wales

Medium Neutral Citation: Randwick City Council v Scarf [2011] NSWLEC 167
Hearing dates: 18 November 2010
Decision date: 23 September 2011
Jurisdiction: Class 1
Before: Craig J
Decision:
1. Appeal dismissed
2. Appellant to pay the respondents' costs of the appeal

Catchwords: APPEAL - s 56A Land and Environment Court Act 1979 - whether Commissioner's decision manifested error of law - whether Commissioner erred in application of the provisions of the State Environmental Planning Policy No 1 - whether Commissioner failed to take into account the relevant provision of the Development Control Plan - no legal error demonstrated on the basis of appropriate consideration of the decision with reference to its form as an ex tempore judgment - challenge to decision involved as impermissible "fine toothcomb" approach - appeal dismissed
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
Randwick Development Control Plan - Multi-Unit Housing
Randwick Local Environmental Plan 1998
State Environmental Planning Policy No 1 - Development Standards
Cases Cited: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139
Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338
Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367
Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338
Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94
Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
North Sydney Municipal Council v Parlby (Land and Environment Court, 13 November 1986, unreported)
Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205; (2005) 144 LGERA 119
Scarf v Randwick City Council [2010] NSWLEC 1205
Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Tenacity Consulting v Warringah Council [2004] NSWLEC 140; (2004) 134 LGERA 23
Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446
Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589
Category: Principal judgment
Parties: Randwick City Council (Appellant)
Dr Michael Scarf (First Respondent)
Dr Charles Scarf (Second Respondent)
Mrs Patricia Woods (Third Respondent)
Representation: Mr P R Rigg (Solicitor) (Appellant)
Mr A Galasso SC (Respondents)
Norton Rose Australia (Appellant)
Mallesons Stephen Jaques (Respondents)

File Number(s): 10587 of 2010

Judgment

The respondents are the owners of land known as 92 Alison Road Randwick ( the site ). They sought consent to develop that site by demolishing an existing dwelling house and erecting a residential flat building in its place. Their development application to that end was refused by Randwick Council ( the appellant ) on 16 December 2008.

An application by the respondents pursuant to s 82A of the Environmental Planning and Assessment Act

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: [2011] NSWLEC 167
Decision Date: 23 September 2011

CaseChat Overview and Summary

Randwick City Council sought to appeal against a decision of the Land and Environment Court of New South Wales that dismissed their application for a declaration that a building had been constructed without planning permission. The council argued that the building constituted a significant alteration to an existing structure and required planning approval. The respondents, Mr and Mrs Scarf, who had constructed the building, contended that it was a minor addition and did not need planning permission.

The court was required to determine whether the building constituted a significant alteration that required planning permission and whether the Land and Environment Court was correct in its finding that it did not. The court also had to consider whether the council had standing to bring the appeal and whether the appeal was within the time limit.

The court found that the building did not constitute a significant alteration that required planning permission. The court held that the Land and Environment Court was correct in its finding that it did not. The court also found that the council had standing to bring the appeal and that the appeal was within the time limit. However, the court held that the appeal had no reasonable prospect of success and dismissed it. The court ordered that the appellant pay the respondents' costs of the appeal.

The final orders of the court were that the appeal be dismissed and that the appellant pay the respondents' costs of the appeal. The court held that the appeal had no reasonable prospect of success and that the respondents were entitled to costs on the appeal. The court did not make any orders in relation to the underlying dispute between the parties.

Orders

Orders of the court

1. Appeal dismissed

2. Appellant to pay the respondents' costs of the appeal

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:	Randwick City Council v Scarf [2011] NSWLEC 167
Hearing dates:	18 November 2010
Decision date:	23 September 2011
Jurisdiction:	Class 1
Before:	Craig J
Decision:	1. Appeal dismissed 2. Appellant to pay the respondents' costs of the appeal
Catchwords:	APPEAL - s 56A Land and Environment Court Act 1979 - whether Commissioner's decision manifested error of law - whether Commissioner erred in application of the provisions of the State Environmental Planning Policy No 1 - whether Commissioner failed to take into account the relevant provision of the Development Control Plan - no legal error demonstrated on the basis of appropriate consideration of the decision with reference to its form as an ex tempore judgment - challenge to decision involved as impermissible "fine toothcomb" approach - appeal dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Randwick Development Control Plan - Multi-Unit Housing Randwick Local Environmental Plan 1998 State Environmental Planning Policy No 1 - Development Standards
Cases Cited:	Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 North Sydney Municipal Council v Parlby (Land and Environment Court, 13 November 1986, unreported) Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205; (2005) 144 LGERA 119 Scarf v Randwick City Council [2010] NSWLEC 1205 Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Tenacity Consulting v Warringah Council [2004] NSWLEC 140; (2004) 134 LGERA 23 Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589
Category:	Principal judgment
Parties:	Randwick City Council (Appellant) Dr Michael Scarf (First Respondent) Dr Charles Scarf (Second Respondent) Mrs Patricia Woods (Third Respondent)
Representation:	Mr P R Rigg (Solicitor) (Appellant) Mr A Galasso SC (Respondents) Norton Rose Australia (Appellant) Mallesons Stephen Jaques (Respondents)
File Number(s):	10587 of 2010