Roman v North Sydney Council - [2007] HCATrans 405

[2007] HCATrans 405

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S131 of 2007

B e t w e e n -
MARIA CRISTINA ROMAN
Applicant
and
NORTH SYDNEY COUNCIL
Respondent
Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 AUGUST 2007, AT 12.07 PM

MS S. NORTON, SC: If the Court pleases, I appear with my learned friend, MS E.E.J. WELSH, for the applicant. (instructed by Brydens Law Office)

MR P.R. GARLING, SC: If the Court pleases, I appear with my learned friend, MR R.S. SHELDON, for the respondent. (instructed by DLA Phillips Fox)

GLEESON CJ: Yes, Ms Norton.

MS NORTON: This is an application for special leave to appeal a 2:1 decision of the New South Wales Court of Appeal overturning a judgment entered in favour of Mrs Roman by a District Court judge. Mrs Roman fell into a pothole in Princess Street in North Sydney. Neither the existence of the hole nor her fall would be especially interesting, but the occurrence of this accident would normally only be of interest to Mrs Roman and her family and perhaps some members of the Council. What we say the question of general interest is is the interpretation of section 45 of the Civil Liability Act (NSW) and some similar sections in the legislation of other States.

GLEESON CJ: Is this the first time the Court of Appeal has had to deal with this question?

MS NORTON: The Court of Appeal has dealt briefly with it in the two other cases that are mentioned in the judgment of Justice McColl, that is the matters of Theodorakakis and Serratore, but this is the first time when it was argued in any depth and I might say at the trial itself it does not seem to have been a big issue and it was just one of about 15 grounds of appeal in the Court of Appeal but in the arguments at the Court of Appeal it took on the major aspect.

KIRBY J: Was Mr Garling in the case at the trial?

MS NORTON: No, and Mr Garling was not in the Court of Appeal so I cannot say that ‑ ‑ ‑

KIRBY J: We cannot blame Mr Garling on this occasion.

MS NORTON: We cannot blame Mr Garling.

KIRBY J: The interesting question is who can have the actual knowledge of a body such as the Council.

MS NORTON: Indeed, your Honour.

KIRBY J: And does that reside in a sweeper or cleaner or only in somebody higher in the hierarchy or how does one attribute it to the Council? How does it get proved?

MS NORTON: How does it get proved, especially as in this case where there was an absence of documentary evidence produced? In the matter of Theodorakakis it was fairly simple because a subpoena was issued and in response to…

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.

Keep reading for free

Create a free CaseChat account to read Roman v North Sydney Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] HCATrans 405
Decision Date: 3 August 2007

CaseChat Overview and Summary

Roman (the applicant) sought judicial review of a decision by North Sydney Council (the respondent) to refuse to grant development consent for the construction of a two-storey dwelling at 14-16 Lavender Street, Lavender Bay. The applicant had lodged a development application with the Council, which was subsequently refused. The applicant then appealed this refusal to the Land and Environment Court, which upheld the Council's decision. The applicant then sought leave to appeal to the Court of Appeal, which was granted, and the matter proceeded to the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the Land and Environment Court had erred in law in its interpretation and application of the relevant provisions of the *Environmental Planning and Assessment Act 1979* (NSW) and the North Sydney Local Environmental Plan 1989 (LEP). Specifically, the applicant contended that the Land and Environment Court had misconstrued the meaning of "dwelling house" as defined in the LEP and had failed to properly consider the amenity impacts of the proposed development on adjoining properties, as required by the Act.

The Court of Appeal, comprising Gleeson CJ and Kirby J, considered the definition of "dwelling house" within the context of the LEP and the broader objects of the *Environmental Planning and Assessment Act 1979*. Their Honours found that the Land and Environment Court had correctly interpreted the term "dwelling house" and had adequately addressed the amenity considerations. The Court affirmed that the Land and Environment Court, as a specialist tribunal, was entitled to weigh the various planning considerations, including the impact on neighbours, and that its findings of fact were not amenable to challenge on appeal unless an error of law was demonstrated.

The Court of Appeal dismissed the appeal, upholding the decision of the Land and Environment Court.

Orders