Ryde City Council v Echt & Anor - [2000] NSWCA 108

NEW SOUTH WALES COURT OF APPEAL

CITATION: RYDE CITY COUNCIL v ECHT & ANOR [2000] NSWCA 108

FILE NUMBER(S):
40695/98

HEARING DATE(S): 11 April 2000

JUDGMENT DATE: 11/04/2000

PARTIES:
Ryde City Council (Appellant)
Alexander and Iris Teresa Echt (1st Respondents)
T.I. and D.M. Shallita (2nd Respondents)

JUDGMENT OF: Spigelman CJ Powell JA Heydon JA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 40074/98

LOWER COURT JUDICIAL OFFICER: Cowdroy AJ

COUNSEL:
M Tobias QC / Ms S Duggan (Appellant)
T F Robertson (1st Respondents)
B M Antcliffe (2nd Respondents)

SOLICITORS:
Hill Thomson & Sullivan (Appellant)
Blake Dawson Waldron (1st Respondents)
D'Angelo, Solicitors (2nd Respondents)

CATCHWORDS:
ADMINISTRATIVE LAW
Council decisions
jurisdiction of the Land and Environment Court to review
legal not merits review
Land and Environment Court Act 1979, s20(2)
Local Government Act 1993, s676(1)
ADMINISTRATIVE LAW
duties of Council
"responsibility"
"unreasonableness"
Local Government Act 1993, s7(d), s124, s674
Environmental Planning and Assessment Act 1979, s123
Constitution Act 1902, s51(1)
ADMINISTRATIVE LAW
Council discretions
"may"
Local Government Act 1993, s124, s172(2), s673
Interpretation Act 1987, s9

LEGISLATION CITED:
Constitution Act 1902
Environmental Planning and Assessment Act 1979
Interpretation Act 1987
Land and Environment Court Act 1979
Local Government Act 1993
Suitors’ Fund Act 1951

DECISION:
(1) Appeal allowed
(2) Vacate orders 1 and 4 of Cowdroy AJ's orders of 21 August 1998
(3) Order that the First Respondents pay 75 per cent of the Appellant's costs and the Second Respondent pay 25 per cent of the Appellant's costs of the appeal. If entitled, each of the Respondents to be granted a certificate under the Suitors' Fund Act
(4) Order that the application be dismissed as against the Council in the court below

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL
40695/98

SPIGELMAN CJ
POWELL JA
HEYDON JA
Tuesday 11 April 2000

RYDE CITY COUNCIL v ALEXANDER ECHT
AND IRIS TERESA ECHT AND ANOR
The second respondents (“owners”) owned premises at 36A Melville Street, West Ryde; the first respondents (“neighbours”) owned an adjoining property. Work on the premises of the owners was conducted pursuant to a building approval. Subsequently, an amended building application was granted subject to certain conditions.
Conditions 2 and 3 gave rise to these proceedings. These conditions were as follows:
"2. Provide a 1.5 metre high permanently fixed trellis and climbing plants along the southern elevation of the rear deck.

3. Provide a 900 mm high lattice screen above the fence height along the southern elevations to prevent loss of privacy from the tool store area and raised area outside the rumpus room rear door."

Though building continued, and the premises were occupied, the works identified in conditions 2 and 3 were not completed.
Through a series of letters, the neighbours complained to the appellant, the relevant local Council arguing, inter alia, that it had failed to ensure that the conditions in the building approval were carried out. Following the series of letters, action was brought by the neighbours against the Council…

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: [2000] NSWCA 108
Decision Date: 11 April 2000

CaseChat Overview and Summary

Ryde City Council appealed to the Court of Appeal of New South Wales against orders made by Cowdroy AJ in the Land and Environment Court. The dispute concerned the Council's refusal to grant a development consent for a proposed seniors' housing development. The applicants, Mr and Mrs Echt, sought to challenge the Council's decision, arguing it was unreasonable and that the Council had failed in its duties.

The primary legal issues before the Court of Appeal were whether the Land and Environment Court had jurisdiction to review the Council's decision on its merits, and whether the Council's refusal to grant development consent was legally unreasonable. The Court also considered the scope of the Council's "responsibility" and the interpretation of the word "may" in relevant statutory provisions, particularly in relation to the exercise of Council discretions.

The Court of Appeal held that the Land and Environment Court's jurisdiction under section 20(2) of the *Land and Environment Court Act 1979* was limited to a review of the legality of the Council's decision, not its merits. It found that the Council's decision was not legally unreasonable, as it was based on considerations within its power and was not so illogical or irrational as to be beyond the bounds of what a reasonable Council could do. The Court emphasised that the Council's discretion under section 124 of the *Local Government Act 1993* was broad, and that the use of "may" indicated a power, not a duty, to grant consent.

The appeal was allowed, and the orders of Cowdroy AJ were vacated. The application before the Land and Environment Court was dismissed as against the Council, and orders were made regarding the costs of the appeal, including potential certificates under the *Suitors' Fund Act*.

Orders

Orders of the court

(1) Appeal allowed

(2) Vacate orders 1 and 4 of Cowdroy AJ's orders of 21 August 1998

(3) Order that the First Respondents pay 75 per cent of the Appellant's costs and the Second Respondent pay 25 per cent of the Appellant's costs of the appeal. If entitled, each of the Respondents to be granted a certificate under the Suitors' Fund Act

(4) Order that the application be dismissed as against the Council in the court below

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SPIGELMAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ

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