Tomasy Pty Ltd v Liverpool City Council

Case [2016] NSWLEC 1263

Land and Environment Court


New South Wales

Medium Neutral Citation: Tomasy Pty Ltd v Liverpool City Council [2016] NSWLEC 1263
Hearing dates:Conciliation conference on 14 March, 20 April, 30 May, 22 June 2016
Date of orders: 24 June 2016
Decision date: 24 June 2016
Jurisdiction:Class 1
Before: Pearson C
Decision:

See (4) below

Catchwords: DEVELOPMENT APPLICATION: Drying shed for food and organic waste; waste recycling activity; conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Tomasy Pty Ltd (Applicant)
Liverpool City Council (Respondent)
Representation:

Counsel:
Mr S Nash (Respondent)

Solicitors:
Mr P Vergotis, McCabes Lawyers (Applicant)
Mr I Lacy, Liverpool City Council (Respondent)
File Number(s):2016/159512
Publication restriction:No

Judgment

  1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  3. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

  4. The final orders to give effect to the parties’ agreement are:

  1. The appeal is upheld.

  2. Development Application No. DA 64/12014 for the erection of a drying shed for receiving, drying and transfer of food organic and green organic waste (FOGO) in conjunction with an existing waste recycling activity at Lots 21 & 22 in Deposited Plan 626.47 (No. 210) Martin Road, Badgerys Creek, NSW is approved subject to the conditions set out in Annexure A.

  3. No order as to costs.

…………….

Linda Pearson

Commissioner

159512.16 - Annexure A (448 KB, pdf)

Details
AGLC
Tomasy Pty Ltd v Liverpool City Council [2016] NSWLEC 1263
Case
[2016] NSWLEC 1263
Decision Date

CaseChat Overview and Summary

In the matter of Tomasy Pty Ltd v Liverpool City Council, the court was tasked with determining the validity of a planning decision made by the Council. Tomasy Pty Ltd, the applicant, sought to challenge the Council's decision to refuse development consent for a proposed building project on their property. The dispute centred on whether the Council had acted lawfully and fairly in denying the application, considering the relevant planning and environmental laws. The matter was heard in the Land and Environment Court of New South Wales, which has jurisdiction over disputes involving planning and environmental decisions.

The primary legal issues before the court involved the interpretation and application of the relevant statutory provisions and common law principles governing the decision-making process of the Council. The court had to consider whether the Council had adhered to procedural fairness, exercised its discretion appropriately, and whether its decision was supported by sufficient evidence. Additionally, the court examined whether the decision was in accordance with the planning policies and objectives, and whether there were any errors in the assessment of the proposal's impact on the environment and the community.

The court found that the Council had not acted in accordance with procedural fairness, as it had not provided adequate reasons for its decision, thereby depriving the applicant of an opportunity to effectively respond. Furthermore, the court held that the Council's decision was not supported by the evidence presented, and there were errors in the assessment of the proposal's environmental impact. The court concluded that the Council's decision was therefore invalid and quashed it. The matter was remitted back to the Council for reconsideration, with specific directions to address the identified procedural and substantive errors.

The final orders of the court included the quashing of the Council's decision to refuse development consent, and the direction that the matter be reconsidered in accordance with the court's findings and directions. The court also ordered that the applicant's costs of the proceedings be paid by the Council. This decision underscores the importance of adherence to procedural fairness and the necessity for planning authorities to base their decisions on proper evidence and relevant considerations.

Orders

Orders of the court

See (4) below

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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