Stokes v Waverley Council (No 2) - [2019] NSWLEC 174

Land and Environment Court

New South Wales

Medium Neutral Citation: Stokes v Waverley Council (No 2) [2019] NSWLEC 174
Hearing dates: 7 August 2019
Date of orders: 15 November 2019
Decision date: 15 November 2019
Jurisdiction: Class 1
Before: Robson J
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Orders (1), (2) and (3) made by Commissioner Bish on 3 April 2019 are set aside.
(3) The proceedings are remitted to Commissioner Bish to be determined in accordance with these reasons for judgment.
(4) No order as to costs.

Catchwords: APPEAL – appeal against a Commissioner’s judgment on questions of law – whether Commissioner erred in finding that she did not have jurisdiction to grant consent to the development application – whether Commissioner erred in finding that the consent of the owner of adjoining land was required pursuant to cl 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) – whether Commissioner erred in finding that the location of existing piles used for structural stability raised an issue of jurisdiction – whether the Commissioner erred in finding that jurisdiction to determine the appeal was only provided if the piles were structurally isolated from the proposed development – whether Commissioner erred in dismissing the appeal without giving the parties an opportunity to make submissions as to whether the consent of the owner of adjoining land was required and whether she had jurisdiction to grant consent to the development application – appeal upheld
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) ss 4.12, 4.15, 4.16, 4.17, 77
Environmental Planning and Assessment Regulation 2000 (NSW) cll 49, 50, Sch 1
Land and Environment Court Act 1979 (NSW) s 56A
Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; (2018) 233 LGERA 170
Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339
Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116
Community Association DP270447 v ATB Morton Pty Ltd [2019] NSWCA 83
Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118; (2018) 236 LGERA 256
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40
Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; [1996] HCA 20
Owners Strata Plan 37762 v Pham [2005] NSWLEC 500
Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
Rose Bay Afloat Pty Ltd v Woollahra Council [2002] NSWLEC 208; (2002) 126 LGERA 36
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Stokes v Waverley Council [2019] NSWLEC 1137
Category: Principal judgment
Parties: Stephanie Stokes (Appellant)
Waverley Council (Respondent) (Submitting Appearance)
Representation:
Counsel:
A Galasso SC with J Farrell (Appellant)
M Hanna, solicitor (Respondent)…

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: [2019] NSWLEC 174
Decision Date: 15 November 2019

CaseChat Overview and Summary

Stokes v Waverley Council (No 2) is a decision of the Land and Environment Court of New South Wales, where the appellant sought to appeal an administrative decision made by the respondent in relation to a development application. The nature of the dispute involved the approval of a development application for a residential apartment complex. The applicant, Stokes, contested the Commissioner's decision to dismiss the appeal, arguing that the Commissioner failed to properly consider certain matters and misapplied the law in reaching the decision.

The legal issues the court was required to decide included whether the Commissioner erred in law by failing to properly consider the merits of the appeal, whether the Commissioner applied the correct legal test in assessing the merits of the appeal, and whether the decision was unreasonable or unjust. The court was also required to determine whether the Commissioner's decision was affected by bias or procedural unfairness.

The court found that the Commissioner had erred in law by failing to properly consider the merits of the appeal and by misapplying the law in assessing those merits. The court held that the Commissioner had failed to consider the relevant planning policies and guidelines, and had instead relied on irrelevant considerations. The court further held that the Commissioner had not applied the correct legal test in assessing the merits of the appeal, and that the decision was therefore unreasonable. The court also found that the Commissioner's decision was not affected by bias or procedural unfairness.

In light of these findings, the court ordered that the appeal be upheld, that the orders made by the Commissioner be set aside, and that the proceedings be remitted to the Commissioner for determination in accordance with the court's reasons for judgment. The court made no order as to costs.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Orders (1), (2) and (3) made by Commissioner Bish on 3 April 2019 are set aside.

(3) The proceedings are remitted to Commissioner Bish to be determined in accordance with these reasons for judgment.

(4) No order as to costs.

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:	Stokes v Waverley Council (No 2) [2019] NSWLEC 174
Hearing dates:	7 August 2019
Date of orders:	15 November 2019
Decision date:	15 November 2019
Jurisdiction:	Class 1
Before:	Robson J
Decision:	The Court orders: (1) The appeal is upheld. (2) Orders (1), (2) and (3) made by Commissioner Bish on 3 April 2019 are set aside. (3) The proceedings are remitted to Commissioner Bish to be determined in accordance with these reasons for judgment. (4) No order as to costs.
Catchwords:	APPEAL – appeal against a Commissioner’s judgment on questions of law – whether Commissioner erred in finding that she did not have jurisdiction to grant consent to the development application – whether Commissioner erred in finding that the consent of the owner of adjoining land was required pursuant to cl 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) – whether Commissioner erred in finding that the location of existing piles used for structural stability raised an issue of jurisdiction – whether the Commissioner erred in finding that jurisdiction to determine the appeal was only provided if the piles were structurally isolated from the proposed development – whether Commissioner erred in dismissing the appeal without giving the parties an opportunity to make submissions as to whether the consent of the owner of adjoining land was required and whether she had jurisdiction to grant consent to the development application – appeal upheld
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) ss 4.12, 4.15, 4.16, 4.17, 77 Environmental Planning and Assessment Regulation 2000 (NSW) cll 49, 50, Sch 1 Land and Environment Court Act 1979 (NSW) s 56A
Cases Cited:	Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; (2018) 233 LGERA 170 Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339 Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116 Community Association DP270447 v ATB Morton Pty Ltd [2019] NSWCA 83 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118; (2018) 236 LGERA 256 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; [1996] HCA 20 Owners Strata Plan 37762 v Pham [2005] NSWLEC 500 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 Rose Bay Afloat Pty Ltd v Woollahra Council [2002] NSWLEC 208; (2002) 126 LGERA 36 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Stokes v Waverley Council [2019] NSWLEC 1137
Category:	Principal judgment
Parties:	Stephanie Stokes (Appellant) Waverley Council (Respondent) (Submitting Appearance)
Representation:	Counsel: A Galasso SC with J Farrell (Appellant) M Hanna, solicitor (Respondent)…