Land and Environment Court
New South Wales
Medium Neutral Citation: The Trustee for Wombarra Vista Unit Trust trading as Wombarra Vista v Wollongong City Council (No 2) [2021] NSWLEC 1369 Hearing dates: 17 June 2021 Date of orders: 23 June 2021 Decision date: 23 June 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: Orders (see [8])
Catchwords: PROCEDURE – application to amend conditions of development consent pursuant to slip rule – conditions amended
Legislation Cited: Land and Environment Court Act 1979 s 34
Uniform Civil Procedure Rules 2005 r 36.17Cases Cited: The Trustee for Wombarra Vista Unit Trust trading as Wombarra Vista v Wollongong City Council [2021] NSWLEC 1129
Category: Principal judgment Parties: The Trustee for Wombarra Vista Trust trading as Wombarra Vista (Applicant)
Wollongong City Council (Respondent)Representation: Counsel:
Solicitors:
A Kelly (Solicitor) (Applicant)
E Kilpatrick (Solicitor) (Respondent)
Foundation Law Group (Applicant)
Wollongong City Council (Respondent)
File Number(s): 2019/405943 Publication restriction: No
Judgment
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COMMISSIONER: By Notice of Motion filed 8 June 2012, supported by an affidavit (the accompanying affidavit) filed on 11 June 2021 and sworn by the Applicant’s solicitor, Alexander Duncan Kelly, the Applicant seeks an order with respect to my judgment delivered on 12 March 2021 in The Trustee for Wombarra Vista Unit Trust trading as Wombarra Vista v Wollongong City Council [2021] NSWLEC 1129 (the substantive proceedings).
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The purpose of the order sought is to correct a minor clerical error within the cover page to Annexure A of the judgment in the substantive proceedings, in which the Parties had, in error, inserted the court case reference number (2019/405943) within a field requiring insertion of the Applicant’s development application number. The correction proposed would provide consistency between my order (4) at [17] of the judgment and the cover page of the accompanying Annexure A.
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This clerical error had been introduced to the Court when with the Parties filed agreed conditions of consent accompanying their agreement reached pursuant to the provisions of s 34 of the Land and Environment Court Act 1979 which confirmed the basis for resolution of contentions in the appeal.
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The Respondent stated that it raised no objection to the affidavit of Mr Kelly or to the application contained in the Notice of Motion seeking an order with respect to my judgment in the substantive proceedings (see above at [1]).
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The order sought, under r 36.17 of the Uniform Civil Procedure Rules 2005 (UCPR), is that the first page of Annexure A to the substantive proceedings be amended in accordance with the accompanying affidavit.
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Specifically, the affidavit identified that the first administrative line of Annexure A should be amended to read:
“Development Application No: DA-2019/1198”
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Having considered the application in the Notice of Motion, I am satisfied that an order should be made in this case under UCPR r 36.17.
Orders
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The Court orders that:
Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 the first administrative line of Annexure A to the Court’s decision in The Trustee for Wombarra Vista Unit Trust trading as Wombarra Vista v Wollongong City Council [2021] NSWLEC 1129 is amended to read “Development Application No: DA-2019/1198”.
The consent granted by the Court on 12 March 2021 to development application DA-2019/1198 in The Trustee for Wombarra Vista Unit Trust trading as Wombarra Vista v Wollongong City Council [2021] NSWLEC 1129 is now subject to the conditions attached hereto as Annexure A containing the amended first administrative line.
…………………………..
M Chilcott
Commissioner of the Court
Annexure A (1835636, pdf)
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- AGLC
- The Trustee for Wombarra Vista Unit Trust trading as Wombarra Vista v Wollongong City Council (No 2) [2021] NSWLEC 1369
- Case
- [2021] NSWLEC 1369
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court involved whether the council had acted lawfully and within its jurisdictional powers when it declined to approve the plaintiff's development application. Specifically, the court needed to consider whether the council's decision was based on proper consideration of relevant factors and whether there was any procedural unfairness in the decision-making process. Additionally, the court had to examine whether the council's decision was supported by sufficient evidence and whether it complied with relevant statutory requirements.
In its judgment, the court meticulously reviewed the council's decision-making process and found several critical errors. The court determined that the council had failed to properly consider several crucial aspects of the development application, including the potential environmental impacts and the consistency of the proposal with the local planning policies. Furthermore, the court found that the council's decision-making process was procedurally unfair as it did not provide the plaintiff with an adequate opportunity to respond to certain concerns raised during the assessment. Consequently, the court ruled that the council's decision was unlawful and quashed it. The matter was remitted back to the council for reconsideration in accordance with the court's directions.
In light of the findings, the court ordered that the council's decision be quashed and that the matter be remitted for reconsideration. The court provided detailed directions to the council regarding the factors it must consider and the procedural steps it must follow in making a new decision. Additionally, the court mandated that the plaintiff be given a fair opportunity to present its case and respond to any new concerns that might arise during the reconsideration process.
Orders
Orders of the court
Orders (see [8])
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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