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Segal & Anor v Waverley Council

Segal & Anor v Waverley Council

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Case Copied 20 July 2004 16 min read

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Land and Environment Court

of New South Wales

CITATION: Segal & Anor v Waverley Council [2004] NSWLEC 363

PARTIES:
APPLICANTS:
Julian Segal and Lucille Melanie Segal
RESPONDENT:
Waverley Council

FILE NUMBER(S): 10547 of 2003

CORAM: Lloyd J

KEY ISSUES:
Appeal :- decision of commissioner - reasons for decision - adequacy - absence of reasons - a principal contested issue - consistency in administrative decision-making - error of law

LEGISLATION CITED: Land and Environment Court Act 1979 s 56A

CASES CITED: Baulkham Hills Shire Council v Basemount Pty Ltd (2003) 126 LGERA 339;
Beale v GIO of NSW (1997) 48 NSWLR 430;
Botany Bay Council v Farnworth Holdings Pty Limited [2004] NSWCA 157;
Boyce v Burwood Municipal Council (1964) 10 LGRA 280;
Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367;
Crusade Constructions Co Pty Ltd v Sutherland Shire Council (1961) 6 LGRA 372;
Darling v Waverley Council [2003] NSWLEC 327;
Farnworth Holdings Pty Ltd v Botany Bay Council [2003] NSWLEC 177;
Foreman v Sutherland Shire Council (1964) 10 LGRA 261;
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378;
Hunter District Industries Pty Ltd v Newcastle City Council (1957) 2 LGRA 240;
JOL Pty Ltd v Waverley Municipal Council (1971) 22 LGRA 152;
La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201;
Leeroy Television Service Pty Ltd v Leichhardt Municipal Council (1970) 21 LGRA 40;
Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812;
Mifsud v Campbell (1991) 21 NSWLR 725;
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259;
North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435;
Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39;
Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) 110 LGERA 352;
Q & R Developments Pty Ltd v Sutherland Shire Council (2001) 117 LGERA 438 ;
Re Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634;
Regent Project (No. 6) Pty Ltd v Hornsby Shire Council (1970) 20 LGRA 316;
Segal & Anor v Waverley Council [2004] NSWLEC 60;
Shellcove Gardens Pty Ltd v North Sydney Municipal Council (1961) 6 LGRA 93;
Smith v Wyong Shire Council (No. 2) (1980) 41 LGRA 202 ;
Soboleva v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 353;
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247;
Stadurn Pty Limited v Blacktown City Council [2004] NSWLEC 348;
Steedman v Baulkham Hills Shire Council (No. 2) (1993) 31 NSWLR 562; 80 LGERA 23;
Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451;
Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303;
Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79

DATES OF HEARING: 29/06/2004

DATE OF JUDGMENT: 07/20/2004

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr M G Craig QC and…

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: [2004] NSWLEC 363
Decision Date: 07/20/2004

CaseChat Overview and Summary

The case of Segal & Anor v Waverley Council is an appeal against a decision by Commissioner Watts of the Land and Environment Court of New South Wales, who had upheld the Segals' appeal against the Waverley Council's refusal to grant a development application for the provision of an onsite garage that required the demolition of part of a sandstone retaining wall. The council appealed this decision, arguing that Commissioner Watts failed to consider the principle of consistency in administrative decision-making and provide adequate reasons for his decision. The court considered whether the principle of consistency in administrative decision-making was a principal contested issue before Commissioner Watts and whether his failure to give reasons on this matter constituted an error of law. The court found that the principle of consistency in decision-making was indeed a principal contested issue raised by the parties, and Commissioner Watts' failure to give reasons on this matter constituted an error of law. The appeal was upheld, and the decision and orders of Commissioner Watts were set aside. The proceedings were remitted to the court for re-hearing and re-determination in conformity with the law. The applicants were ordered to pay the respondent's costs of the appeal but would be entitled to a certificate under the Suitors' Fund Act 1951 if the council was successful.

Orders