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Save Our Streets Inc v Settree

Save Our Streets Inc v Settree

Case [2006] NSWLEC 570

Judicial Review

Natural Justice & Procedural Fairness

Legitimate Expectation

Proportionality

Unreasonableness

Administrative Law

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Reported Decision: (2006) 149 LGERA 30

Land and Environment Court

of New South Wales

CITATION: Save Our Street Incorporated v Settree [2006] NSWLEC 570

PARTIES:
APPLICANT:
Save Our Street Incorporated
FIRST RESPONDENT
G Settree
SECOND RESPONDENT:
Gosford City Council

FILE NUMBER(S): 40961 of 2005

CORAM: Biscoe J

KEY ISSUES: Judicial Review :- whether development consent void because in breach of s 79C(1)(a) of Environmental Planning and Assessment Act 1979 or Wednesbury unreasonable

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C(1)(a)

CASES CITED: Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211;
Bromley London Borough Council v Greater London Council [1983] 1 AC 768;
Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374;
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404;
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24;
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611;
Minister for Immigration v SGLB (2004) 207 ALR 12;
Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11;
Norbis v Norbis (1986) 161 CLR 513;
Port Stephens Council v Chan Industrial Pty Ltd (2005) 141 LGERA 226;
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355;
Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223;
R v Chief Constable of Sussex; Ex parte International Trader's Ferry Ltd [1998] 3 WLR 1260;
Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229;
Victims Compensation Fund v Brown (2002) 54 NSWLR 668;
Victims Compensation Fund v Brown (2003) 77 ALJR 1797;
Weal v Bathurst City Council (2000) 111 LGERA 181;
Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245;
Woolworths Limited v Pallas Newco Pty Limited (2004) 61 NSWLR 707;
Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296

DATES OF HEARING: 27-28/07/2006

DATE OF JUDGMENT:
09/12/2006

LEGAL REPRESENTATIVES:
APPLICANT:
Ms P de Lacy
SOLICITORS
N/A
FIRST RESPONDENT:
Ms S Duggan, barrister
SOLICITORS
Peninsular Law
SECOND RESPONDENT:
Mr J Maston, barrister
SOLICITORS
P J Donnellan & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

12 September 2006

40961 of 2005

SAVE OUR STREET INC v G SETTREE & ANOR.
JUDGMENT

HIS HONOUR:

INTRODUCTION

1 White Street, East Gosford is a pleasant, tree lined, suburban street. Several houses in the street enjoy views to Brisbane Waters. The houses are largely single storey. Residents concerned about development affecting the character of the street formed an incorporated association called “Save Our Street Incorporated”, whose objects seem obvious enough from its name. It is the applicant in these proceedings and has been represented at the hearing before me by one of the residents, Ms de Lacy.

2 The applicant challenges the validity of a development consent granted by Gosford City Council for the replacement of one of the…

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.

Continue reading Save Our Streets Inc v Settree

Details

AGLC: Save Our Streets Inc v Settree [2006] NSWLEC 570
Case: [2006] NSWLEC 570
Decision Date: 12/09/2006

CaseChat Overview and Summary

Save Our Street Incorporated, an incorporated association of residents of White Street, East Gosford, challenged the validity of a development consent granted by Gosford City Council for the replacement of a house on the street with a four unit residential flat building. The applicant sought a declaration that the development consent was void, claiming it was granted in breach of s 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 and was unreasonable. The first claim was that the development consent was beyond power to grant because the minimum site area prescribed by cl 28(2) of the Gosford Planning Scheme Ordinance was breached. The court held that the floor area of each dwelling was less than 110 square metres and that the minimum site area was achieved, thus the first claim failed. The second claim was that the council failed to take into consideration cl 10(4) of the Gosford Planning Scheme Ordinance, with respect to the character of the development site and the surrounding area, and provisions of the Gosford Medium Density Residential Development Control Plan No 100, such that its decision was unreasonable. The court held that the applicant had not discharged its onus of proving this claim and it therefore failed. The applicant's claims were dismissed and the proceedings were dismissed with costs reserved.

Orders