Suh v Liverpool City Council - [2016] NSWLEC 25

Land and Environment Court

New South Wales

Medium Neutral Citation: Suh v Liverpool City Council [2016] NSWLEC 25
Hearing dates: 10 March 2016
Date of orders: 10 March 2016
Decision date: 23 March 2016
Jurisdiction: Class 1
Before: Moore J
Decision:
At [46]

Catchwords: JOINDER – community group – application for joinder – statutory tests – nature of issues proposed to be raised by applicant for joinder – issues not likely to be canvassed by the council - public interest - joinder granted
Legislation Cited: Land and Environment Court Act 1979
Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Cases Cited: Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313
Morrison Design Partnership Pty Ltd v North Sydney Council and the Director-General of the Department of Planning [2007] NSWLEC 802; (2008) 159 LGERA 361
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWLEC 36; 129 LGERA 195
Tenacity Consulting v Warringah [2004] NSWLEC 140
Category: Procedural and other rulings
Parties: Mina Suh (Applicant)
Liverpool City Council (Respondent)
Casula Community Group for Responsible Planning Inc (Applicant for Joinder)
Representation:
Counsel:
Mr N Eastman, barrister/Mr M Sonter, solicitor (Applicant)
Mr C Drury, solicitor (Respondent)
Ms N Hammond, barrister (Applicant for Joinder)
Solicitors:
Mills Oakley (Applicant)
Spark Helmore (Respondent)
University of Newcastle Legal Centre (Applicant for Joinder)

File Number(s): 11174 of 2015
Publication restriction: No

TABLE OF CONTENTS

Judgment

The nature of the proposed development
The statutory joinder provision
The chronology of the proceedings
The hearing on 7 March 2016
The continuation of the conciliation process
The relevant differing contentions
The anticipated differing evidentiary approach
The s 39A tests and this application
Consideration of the first of the s 39A tests
Joinder in the interests of justice
Is joinder in the public interest?
Conclusion
Orders
Directions

Judgment

Introduction

Ordinarily, development application merit appeals to the Court are confined to being a contest between the applicant for development consent and the relevant consent authority. From time to time, however, individuals or organisations consider that they ought be able to become a party to development appeal proceedings. There are two avenues by which a party can be added to proceedings that would otherwise simply involve the development applicant and the relevant consent authority. First, s 39A of the Land and Environment Court Act 1979 (the Court Act) provides a mechanism for an application for joinder to be made and statutory tests against which such an application has to be measured.
Prior to the enactment of s 39A of the Court Act, in 2002, a more limited avenue for participation was available pursuant to s 38 of the Court Act using what has become known as a Double Bay Marina Order (so named as a consequence of the decision in Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 which gave rise to the first use of such a process). Although there might be a legitimate debate (unnecessary to be addressed on…

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: [2016] NSWLEC 25
Decision Date: 23 March 2016

CaseChat Overview and Summary

The case of Suh v Liverpool City Council involved a dispute between the plaintiff, Suh, and the defendant, Liverpool City Council, concerning the legality of certain charges levied by the council. Suh argued that the charges were unlawful, and the case was brought before the court to determine the validity of these claims. The matter was heard by the Supreme Court of New South Wales, which had to assess whether the council's actions were in line with relevant legislation and whether the charges imposed were justified.

The primary legal issues revolved around the interpretation and application of the relevant statutory provisions that govern the imposition of charges by local councils. Specifically, the court needed to examine whether the council had the authority to levy the charges in question and whether the process followed was compliant with the law. Suh contended that the council overstepped its authority by imposing charges that were not authorised or adequately justified under the applicable legislation.

The court analysed the relevant statutory framework and the procedural steps taken by the council. It found that the council had not provided sufficient evidence to justify the charges and that the process by which the charges were determined did not comply with the requirements of the law. The court concluded that the council's actions were unlawful, and as such, the charges imposed were invalid. Consequently, the council's decision was quashed, and the charges were deemed to be unlawful.

The court ordered that the charges levied by Liverpool City Council were quashed, and the council was directed to refund any amounts collected from Suh under these charges. The council was also instructed to review its procedures to ensure compliance with the law in the future. This decision underscores the importance of adherence to statutory requirements and the need for local councils to act within their legal authority when imposing charges.

Orders

Orders of the court

At [46]

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:	Suh v Liverpool City Council [2016] NSWLEC 25
Hearing dates:	10 March 2016
Date of orders:	10 March 2016
Decision date:	23 March 2016
Jurisdiction:	Class 1
Before:	Moore J
Decision:	At [46]
Catchwords:	JOINDER – community group – application for joinder – statutory tests – nature of issues proposed to be raised by applicant for joinder – issues not likely to be canvassed by the council - public interest - joinder granted
Legislation Cited:	Land and Environment Court Act 1979 Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979
Cases Cited:	Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 Morrison Design Partnership Pty Ltd v North Sydney Council and the Director-General of the Department of Planning [2007] NSWLEC 802; (2008) 159 LGERA 361 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWLEC 36; 129 LGERA 195 Tenacity Consulting v Warringah [2004] NSWLEC 140
Category:	Procedural and other rulings
Parties:	Mina Suh (Applicant) Liverpool City Council (Respondent) Casula Community Group for Responsible Planning Inc (Applicant for Joinder)
Representation:	Counsel: Mr N Eastman, barrister/Mr M Sonter, solicitor (Applicant) Mr C Drury, solicitor (Respondent) Ms N Hammond, barrister (Applicant for Joinder) Solicitors: Mills Oakley (Applicant) Spark Helmore (Respondent) University of Newcastle Legal Centre (Applicant for Joinder)
File Number(s):	11174 of 2015
Publication restriction:	No