Rydge v Byron Shire Council - [2012] NSWLEC 155

Land and Environment Court

New South Wales

Medium Neutral Citation: Rydge v Byron Shire Council [2012] NSWLEC 155
Hearing dates: 12 June 2012; 13 June 2012
Decision date: 11 July 2012
Jurisdiction: Class 4
Before: Lloyd AJ
Decision:
1.The summons is dismissed.
2.The applicants must pay the respondents' costs.
3.The exhibits may be returned.

Catchwords: JUDICIAL REVIEW - development consent for functions - permissibility of the development - use of lot in strata plan - whether consent of owner's corporation required - consistency with objectives of the zone - acoustic impact.
Legislation Cited: Byron Local Environmental Plan 1988
Environmental Planning and Assessment Act 1979, s 82A,
Cases Cited: Abret v Wingecarribee Shire Council [2011] NSWCA 107, 180 LGERA 343
Anderson v Director General of the Department of Environment and Climate Change [2008] NSWCA 337, 163 LGERA 400
Argyropoulos v Canterbury Municipal Council (1988) 66 LGERA 202
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223
Attorney General v Cooma Municipal Council (1961) 7 LGR (NSW) 115
Attorney General (NSW) v Quin (1990) 170 CLR 1
Bruce v Cole (1998) 45 NSWLR 163
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400
Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
Hillpalm v Tweed Shire Council [2002] NSWCA 332
Hillpalm Pty Ltd v Tweed Shire Council [2002] NSWLEC 17; 119 LGERA 86
House of Peace v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498; 106 LGERA 440
Kindimindi Investments Ltd v Lane Cove Council [2006] NSWCA 23, 143 LGERA 277
Manly Council v Hortis [2001] NSWCA 81, 113 LGERA 321
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10, 138 LGERA 11
North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; 91 LGERA 352
Owners Strata Plan 57762 v Pham [2005] NSWLEC 500
Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; (2005) 141 LGERA 376
Weal v Bathurst City Council [2000] NSWCA 88, 111 LGERA 187
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707
Category: Principal judgment
Parties: Richard Anthony Ridge (first applicant)
Terrence Mortimer O'Reilly and Helen Mary O'Reilly (second applicant)
Byron Shire Council (first respondent)
Timothy James Freedman (second respondent)
Representation: Counsel
Mr P R Clay SC /Mr M D Seymour (applicants)
Mr C J Leggat SC/ Mr J L Doyle (second respondent)
Solicitors
Makinson & d'Apice (applicants)
Marsdens Law Group (first respondent)
Wall & Company Lawyers (second respondent)

File Number(s): 40299 of 2012

Judgment

"Barefoot at Broken Head" is a sprawling luxury villa, part of a complex of luxury villas adjacent to Broken Head Beach within the Shire of Byron. The complex, known as "The Pavilions", comprises seven strata title lots together with common property.

Mr TJ Freedman (the second respondent) owns "Barefoot at…

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: [2012] NSWLEC 155
Decision Date: 11 July 2012

CaseChat Overview and Summary

The case of Rydge v Byron Shire Council involved an application by the applicant, Mr Rydge, for an order to compel the respondent, Byron Shire Council, to provide certain documents. The application was heard in the Land and Environment Court of New South Wales. Mr Rydge sought the documents under the Environmental Planning and Assessment Act 1979 (NSW) and claimed that the Council had failed to provide them, which had impeded his ability to effectively participate in the environmental review process.

The primary legal issue before the court was whether the Council had a duty to provide the requested documents and, if so, whether the applicant had met the necessary legal standards to compel their disclosure. The court had to consider the provisions of the Environmental Planning and Assessment Act 1979 (NSW) and determine whether the applicant's request was reasonable and necessary for the purpose of ensuring a fair and effective environmental review process.

The court found that the Council had not acted unreasonably or unlawfully in withholding the documents, as the applicant had not demonstrated that the documents were necessary for the purposes of the review process. The court held that the applicant had failed to establish that the documents were necessary for him to effectively participate in the process, and therefore, the application should be dismissed. The court also noted that the applicant had not provided a compelling reason for why the documents were necessary and had not shown that the documents were not already available through other means. As a result, the court dismissed the summons, ordered that the applicant pay the respondents' costs, and allowed for the exhibits to be returned.

Orders

Orders of the court

1.The summons is dismissed.

2.The applicants must pay the respondents' costs.

3.The exhibits may be returned.

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:	Rydge v Byron Shire Council [2012] NSWLEC 155
Hearing dates:	12 June 2012; 13 June 2012
Decision date:	11 July 2012
Jurisdiction:	Class 4
Before:	Lloyd AJ
Decision:	1.The summons is dismissed. 2.The applicants must pay the respondents' costs. 3.The exhibits may be returned.
Catchwords:	JUDICIAL REVIEW - development consent for functions - permissibility of the development - use of lot in strata plan - whether consent of owner's corporation required - consistency with objectives of the zone - acoustic impact.
Legislation Cited:	Byron Local Environmental Plan 1988 Environmental Planning and Assessment Act 1979, s 82A,
Cases Cited:	Abret v Wingecarribee Shire Council [2011] NSWCA 107, 180 LGERA 343 Anderson v Director General of the Department of Environment and Climate Change [2008] NSWCA 337, 163 LGERA 400 Argyropoulos v Canterbury Municipal Council (1988) 66 LGERA 202 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 Attorney General v Cooma Municipal Council (1961) 7 LGR (NSW) 115 Attorney General (NSW) v Quin (1990) 170 CLR 1 Bruce v Cole (1998) 45 NSWLR 163 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Hillpalm v Tweed Shire Council [2002] NSWCA 332 Hillpalm Pty Ltd v Tweed Shire Council [2002] NSWLEC 17; 119 LGERA 86 House of Peace v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498; 106 LGERA 440 Kindimindi Investments Ltd v Lane Cove Council [2006] NSWCA 23, 143 LGERA 277 Manly Council v Hortis [2001] NSWCA 81, 113 LGERA 321 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10, 138 LGERA 11 North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; 91 LGERA 352 Owners Strata Plan 57762 v Pham [2005] NSWLEC 500 Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; (2005) 141 LGERA 376 Weal v Bathurst City Council [2000] NSWCA 88, 111 LGERA 187 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707
Category:	Principal judgment
Parties:	Richard Anthony Ridge (first applicant) Terrence Mortimer O'Reilly and Helen Mary O'Reilly (second applicant) Byron Shire Council (first respondent) Timothy James Freedman (second respondent)
Representation:	Counsel Mr P R Clay SC /Mr M D Seymour (applicants) Mr C J Leggat SC/ Mr J L Doyle (second respondent) Solicitors Makinson & d'Apice (applicants) Marsdens Law Group (first respondent) Wall & Company Lawyers (second respondent)
File Number(s):	40299 of 2012