Skouteris v Auburn City Council - [2005] NSWLEC 207

Land and Environment Court

of New South Wales

CITATION:
Skouteris v Auburn City Council and Anor [2005] NSWLEC 207

PARTIES:
Con Skouteris and Christine Skouteris
Auburn City Council
Simon Khattar

FILE NUMBER(S):
41253 of 2004

CORAM:
Cowdroy J

KEY ISSUES:
Development Consent :- grant of development consent - child care centre - power of Council to grant consent - mandatory conditions precedent - whether Council formed opinion which was mandatory condition precedent - whether Council failed to consider noise impact - whether grant of consent unreasonable without acoustic report

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 s 79C(1)(b), s 81(1)(a)
Auburn Local Environmental Plan 2000 cll 11, 14, 48, Sch 1

CASES CITED:
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223;
Centro Properties Limited v Hurstville City Council & Anor (2004) 135 LGERA 257;
Clifford & Anor v Wyong Shire Council (1996) 89 LGERA 240;
Currey v Sutherland Shire Council & Ors (1998) 100 LGERA 365;
Franklins Limited v Penrith City Council & Anor [1999] NSWCA 134;
Houlton & Anor v Woollahra Municipal Council & Ors [1998] NSWLEC 188;
Manly Council v Hortis & Anor (2001) 113 LGERA 321;
Parramatta City Council & Anor v Hale & Ors (1982) 47 LGRA 319;
Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74;
Somerville v Dalby & Ors (1990) 69 LGRA 422

DATES OF HEARING: 15/04/2005

DATE OF JUDGMENT:

04/29/2005

LEGAL REPRESENTATIVES:
APPLICANTS
J Jagot
SOLICITORS
Andresakis & Associates
FIRST RESPONDENT
Peter Jackson (solicitor)
SOLICITORS
Pike Pike & Fenwick
SECOND RESPONDENT
Joe Nasr (solicitor)
SOLICITORS
CPC Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

29 April 2005

41253 of 2004

CON SKOUTERIS and CHRISTINE SKOUTERIS
Applicants

AUBURN CITY COUNCIL
First Respondent

SIMON KHATTAR
Second Respondent
JUDGMENT

Facts

1 Cowdroy J: By Development Application No 218/04 (“the D/A”) the second respondent sought development consent for the development of lot E in DP 412598 being land known as 36B Regent Street, Regent’s Park (“the land”). The development comprised the demolition of existing improvements and the construction of a single storey building to be used for the purpose of a child care centre between the hours of 7 am and 6 pm weekdays, together with associated incidental works.

2 The land is affected by the provisions of the Auburn Local Environmental Plan 2000 (“the LEP”) and pursuant thereto is zoned Residential 2(a) – Residential (Low Density) Zone. Within such zone the development of child care centres is permissible with consent. “Child care centre” is defined in Schedule 1 to the LEP as:-

… a building or place used for educating, minding or caring for children, catering for six or more children, but does not include an educational establishment.

3 On 21 July 2004 the first respondent (“the Council”) granted development consent (“the consent”) to the D/A pursuant to s 81(1)(a) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”).

4 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 Skouteris v Auburn City Council

Details

AGLC: Skouteris v Auburn City Council [2005] NSWLEC 207
Case: [2005] NSWLEC 207
Decision Date: 04/29/2005

CaseChat Overview and Summary

In Skouteris v Auburn City Council, the applicants, Con and Christine Skouteris, challenged the validity of development consent granted by Auburn City Council to Simon Khattar for the construction of a child care centre on a residential property. The applicants argued that the Council failed to form the required opinion that the development was compatible with the existing and future character and amenity of nearby properties as mandated by clause 14 of the Auburn Local Environmental Plan 2000. Additionally, they contended that the Council failed to consider the likely noise impact of the development and that the decision to grant consent was unreasonable without an acoustic report. The Court of Appeal found that while the Council did consider various factors in its decision-making process, it did not specifically address whether it had formed the opinion required by clause 14, which was a mandatory condition precedent. Consequently, the Court concluded that the Council's decision to grant the consent was beyond its power and therefore invalid.

The Court also examined whether the Council failed to consider the likely impact of noise from the proposed child care centre. Although the report prepared by the Council's town planner did not explicitly address clause 14, it did consider the potential for noise impacts and concluded that the development would not result in significant noise problems for adjoining properties. The Court found that the Council had considered the noise impact, albeit not in the manner suggested by the applicants, and therefore rejected this ground of appeal. Lastly, the Court held that the Council had discretion to decide whether an acoustic report was necessary and that there was insufficient evidence to establish that the decision was unreasonable. The Court declared the development consent invalid, restrained the respondent from carrying out any development based on the consent, and ordered the Council to pay the applicants' costs unless a different order was sought within 21 days.

Orders