Ross v Lane

Case [2022] NSWCA 235

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Ross v Lane [2022] NSWCA 235
Hearing dates: 11 August 2022
Date of orders: 17 November 2022
Decision date: 17 November 2022
Before: Macfarlan JA at [1];
Beech-Jones JA at [6];
Basten AJA at [69]
Decision:

(1)   Appeal dismissed.

(2)   Appellant to pay the First Respondent’s costs of the appeal.

Catchwords:

ADMINISTRATIVE LAW – jurisdictional facts – applicability of State Environment Planning Policy 65 – whether application of SEPP 65 was a matter for the Court or the consent authority to determine

PLANNING LAW – planning approval – development application – applicability of State Environment Planning Policy 65 – Design Quality of Residential Apartment Development (“SEPP 65”) – Council approved development application for modifications and extensions to the first respondent’s apartment including construction of additional storey – substantially affected views from one floor of appellant’s apartment in neighbouring block –whether development approval invalid – whether SEPP 65 applicable – whether SEPP 65 complied with –– whether development application involved the “substantial redevelopment or the substantial refurbishment of an existing building”

Legislation Cited:

Crimes (Administration of Sentences) Act 1999 (NSW), s 135

Interpretation Act 1987 (NSW), s 33

Land and Environment Court Act 1979 (NSW) ss 25B, 58

Environmental Planning and Assessment Act 1979 (NSW) ss 1.4, 4.9, 4.11-4.18, 4.59

Environmental Planning and Assessment Regulation 2000 (NSW), cll 50, 54; Sch 1, Pt 1, cl 2

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41

Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; [2014] HCA 42

Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297; [1997] HCA 10

Barton Securities Ltd v Warringah Council [2009] NSWLEC 179; 170 LGERA 223

Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24

Colonial Bank of Australasia Ltd v Willan (1874) LR 5 PC 417

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5

Ex parte Hulin; Re Gillespie (1965) 65 SR (NSW) 31

Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA147

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7

R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; [1979] HCA 32

Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281; 247 LGERA 277

SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66

Sutherland Shire Council v Finch (1970) 123 CLR 657; [1970] HCA 49

Timbarra Protection Coalition Inc (1999) 46 NSWLR 55; [1999] NSWCA 8

Trives v Hornsby Shire Council & Ors (2015) 89 NSWLR 268; [2015] NSWCA 158

Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61…

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Details
AGLC
Ross v Lane [2022] NSWCA 235
Case
[2022] NSWCA 235
Decision Date

CaseChat Overview and Summary

The appeal in *Ross v Lane* concerned a dispute over a development application approved by the local council for modifications and extensions to an apartment building, including the construction of an additional storey. The appellant, a resident of a neighbouring apartment block, argued that the development substantially affected views from their apartment and that the development approval was invalid. The central question was whether State Environment Planning Policy 65 – Design Quality of Residential Apartment Development (“SEPP 65”) applied to the development and, if so, whether it had been complied with.

The primary legal issues before the Court of Appeal were whether the development constituted a "substantial redevelopment or the substantial refurbishment of an existing building" for the purposes of SEPP 65, and consequently, whether the applicability of SEPP 65 was a matter for the Court to determine or for the consent authority. The appellant contended that the development fell within the scope of SEPP 65 and that the council had failed to properly consider or comply with its provisions.

The Court of Appeal held that the development did not amount to a "substantial redevelopment or the substantial refurbishment of an existing building" as contemplated by SEPP 65. Therefore, SEPP 65 was not applicable to the development application. The Court reasoned that the modifications and extensions were not of a scale or nature that would trigger the application of the policy, which is designed to regulate the design quality of new residential apartment developments or significant alterations to existing ones.

The appeal was dismissed, and the appellant was ordered to pay the first respondent's costs of the appeal.

Orders

Orders of the court

(1) Appeal dismissed.

(2) Appellant to pay the First Respondent’s costs of the appeal.

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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