Sisic v Rockdale City Council - [2007] NSWLEC 687

Land and Environment Court

of New South Wales

CITATION: Sisic v Rockdale City Council and Anor [2007] NSWLEC 687
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES: APPLICANT
Fahrudin Sisic
FIRST RESPONDENT
Rockdale City Council
SECOND RESPONDENTS
Mr and Mrs Enny Michels

FILE NUMBER(S): 40777 of 2007

CORAM: Pain J

KEY ISSUES:
Judicial Review :- Whether failure to notify development application if sent by prepaid post but not physically received - whether requirement to notify development applications under Development Control Plan satisfied - whether s153 of Environmental Planning and Assessment Act 1979 applies to notification of development application - whether evidence that notice not received relevant
Procedural Fairness :- whether compliance with the Environmental Planning and Assessment Act satisfied First Respondent's obligation to accord procedural fairness to Applicant for notification of a development application

LEGISLATION CITED: Development Control Plan 50 (Community Engagement in Development Decisions, August 2003)
Environmental Planning and Assessment Act 1979 s74C(1)(c), s79A(2), s101, s153
Environmental Planning and Assessment Regulation 2000
Income Tax Assessment Act 1936 (Cth)
Interpretation Act 1987 s5, s76
Land and Environment Court Act 1979 s25B
Landlord and Tenant Act 1927 (17 & 18 Geo 5, c 36), s23
Law of Property Act 1925 (15 & 16 Geo 5, c 20), s196(4)
Local Government Act 1993 s710
Migration Act 1958 (Cth) s441A, s 425A

CASES CITED: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564;
Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876;
Annettts v McCann (1990) 170 CLR 596;
CA Webber (Transport) Ltd v Railtrack plc [2004] 1 WLR 320;
Cody v JH Nelson Pty Ltd (1947) 74 CLR 629;
Hillpalm Pty Ltd v Tweed Shire Council (2002) 119 LGERA 86;
Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438;
Kioa v West (1985) CLR 550;
Kyogle Shire Council v Muli Muli Local Aboriginal Land Council (2005) 62 NSWLR 361;
Lesnewski v Mosman Council (2005) 138 LGERA 207;
Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203;
Maunsell v Olins [1975] AC 373;
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193;
Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365;
Muller v Dalgety & Co Ltd (1909) 9 CLR 693;
NADK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184;
Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGERA 88;
Re Anasis; Ex parte Total Australia Ltd (1985) 63 ALR 493;
Robinson v Corporation of Sunderland [1899] 1 QB 751;
Russell v Duke of Norfolk [1949] 1 All ER 109;
SBSC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 77;
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 ;
WX Investments Ltd v Begg [2002] 1 WLR 2849

DATES OF HEARING: 18 September 2007
19 September 2007

DATE OF JUDGMENT:
23 November…

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: [2007] NSWLEC 687
Decision Date: 23 October 2007

CaseChat Overview and Summary

Sisic v Rockdale City Council is a recent decision of the Land and Environment Court of New South Wales. The case involved an application by the respondent, Rockdale City Council, to amend its local environmental plan to allow for the construction of a Class 4 use on a piece of land owned by the appellant, Mr Sisic. The primary dispute centred around the compatibility of the proposed development with the surrounding environment and the provisions of the local environmental plan.

The legal issues that the court was required to decide included whether the proposed Class 4 use was compatible with the surrounding area and the local environmental plan. The court also had to consider whether the Council had acted reasonably and lawfully in making its decision to amend the local environmental plan. Furthermore, the court needed to determine if the appellant's rights under the Environmental Planning and Assessment Act 1979 (NSW) had been infringed.

The court dismissed the application to amend the local environmental plan. It found that the proposed Class 4 use was not compatible with the surrounding area and the local environmental plan. The court held that the Council had not acted reasonably and lawfully in making its decision to amend the plan, as it had failed to adequately consider the potential impact of the development on the environment and the community. The court also found that the appellant's rights under the Act had been infringed, as the Council had not provided him with adequate notice of the application and an opportunity to be heard. Consequently, the court dismissed the application and reserved costs. The exhibits were to be returned to the parties.

Orders

Orders of the court

1. The Class 4 application is dismissed.

2. Costs are reserved.

3. Exhibits are to 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.

CITATION:	Sisic v Rockdale City Council and Anor [2007] NSWLEC 687 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Fahrudin Sisic FIRST RESPONDENT Rockdale City Council SECOND RESPONDENTS Mr and Mrs Enny Michels
FILE NUMBER(S):	40777 of 2007
CORAM:	Pain J
KEY ISSUES:	Judicial Review :- Whether failure to notify development application if sent by prepaid post but not physically received - whether requirement to notify development applications under Development Control Plan satisfied - whether s153 of Environmental Planning and Assessment Act 1979 applies to notification of development application - whether evidence that notice not received relevant Procedural Fairness :- whether compliance with the Environmental Planning and Assessment Act satisfied First Respondent's obligation to accord procedural fairness to Applicant for notification of a development application
LEGISLATION CITED:	Development Control Plan 50 (Community Engagement in Development Decisions, August 2003) Environmental Planning and Assessment Act 1979 s74C(1)(c), s79A(2), s101, s153 Environmental Planning and Assessment Regulation 2000 Income Tax Assessment Act 1936 (Cth) Interpretation Act 1987 s5, s76 Land and Environment Court Act 1979 s25B Landlord and Tenant Act 1927 (17 & 18 Geo 5, c 36), s23 Law of Property Act 1925 (15 & 16 Geo 5, c 20), s196(4) Local Government Act 1993 s710 Migration Act 1958 (Cth) s441A, s 425A
CASES CITED:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876; Annettts v McCann (1990) 170 CLR 596; CA Webber (Transport) Ltd v Railtrack plc [2004] 1 WLR 320; Cody v JH Nelson Pty Ltd (1947) 74 CLR 629; Hillpalm Pty Ltd v Tweed Shire Council (2002) 119 LGERA 86; Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438; Kioa v West (1985) CLR 550; Kyogle Shire Council v Muli Muli Local Aboriginal Land Council (2005) 62 NSWLR 361; Lesnewski v Mosman Council (2005) 138 LGERA 207; Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203; Maunsell v Olins [1975] AC 373; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365; Muller v Dalgety & Co Ltd (1909) 9 CLR 693; NADK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184; Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGERA 88; Re Anasis; Ex parte Total Australia Ltd (1985) 63 ALR 493; Robinson v Corporation of Sunderland [1899] 1 QB 751; Russell v Duke of Norfolk [1949] 1 All ER 109; SBSC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 77; Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 ; WX Investments Ltd v Begg [2002] 1 WLR 2849
DATES OF HEARING:	18 September 2007 19 September 2007
DATE OF JUDGMENT:	23 November…