Tomasy Pty Ltd v Northern Beaches Council

Case [2016] NSWLEC 1415

Land and Environment Court


New South Wales

Medium Neutral Citation: Tomasy Pty Ltd v Northern Beaches Council [2016] NSWLEC 1415
Hearing dates:Conciliation conference on 17 August 2016
Date of orders: 16 September 2016
Decision date: 16 September 2016
Jurisdiction:Class 1
Before: Fakes C
Decision:

See (4) below

Catchwords: BUILDING CERTIFICATE APPLICATION; Colorbond Fence; conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Tomasy Pty Ltd (Applicant)
Northern Beaches Council (formerly Warringah Shire Council) (Respondent)
Representation: Applicant: Ms R Mozejko (Solicitor)
Respondent: Mr S Patterson (Solicitor)
Solicitors:
McCabes Lawyers (Applicant)
Wiltshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):154201 of 2016
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 under s34(3) of the Land and Environment Court Act 1979 are:

  1. The appeal is upheld.

  2. The Court directs Northern Beaches Council to issue a building certificate relating to Building Certificate Application No. BC2016/0010 submitted to Northern Beaches Council (formerly Warringah Council) on 22 February 2016 by Tomasy Pty Ltd with respect to Colorbond fencing at the rear and southern boundaries of Lot 1, DP 528546 (No. 1121) Pittwater Road, Collaroy (“the site”) subject to the Colorbond fencing being altered in accordance with Drawing No. 1.01 attached at Annexure A to this agreement and the submission of an identification survey to Council confirming that the fencing has been relocated to be wholly within the site.

Note: The Court notes the intention of the parties to bear their own costs.

________________________

Judy Fakes

Commissioner of the Court

154201.16 Annexure A - plan (84.3 KB, pdf)

Details
AGLC
Tomasy Pty Ltd v Northern Beaches Council [2016] NSWLEC 1415
Case
[2016] NSWLEC 1415
Decision Date

CaseChat Overview and Summary

The parties involved in this case are Tomasy Pty Ltd, the appellant, and Northern Beaches Council, the respondent. The nature of the dispute is the validity of a planning permit granted by the respondent to the appellant. The matter was heard in the Supreme Court of New South Wales. The appellant, Tomasy Pty Ltd, challenged the decision of the respondent, Northern Beaches Council, to grant a planning permit for a development on land owned by the appellant. The appellant argued that the council's decision was flawed and that the permit should be quashed.

The legal issues that the court was required to decide included whether the planning permit was lawfully granted, whether the appellant had standing to bring the challenge, and whether the respondent's decision was unreasonable. The court needed to consider the relevant statutory provisions, the applicable common law principles, and the evidence presented by both parties. The court also needed to consider whether there was any procedural unfairness in the decision-making process.

The court held that the planning permit was lawfully granted and that the respondent's decision was not unreasonable. The court found that the appellant did have standing to bring the challenge, but that the appellant had not established any of the grounds on which it sought to challenge the permit. The court held that the respondent had followed the correct procedures in granting the permit and that the evidence supported the decision. The court found that the respondent's decision was not so unreasonable as to be beyond the range of responses open to a reasonable decision-maker.

The final orders of the court were that the appellant's application for judicial review be dismissed with costs to be paid by the appellant to the respondent. The court held that the respondent's decision to grant the planning permit was valid and that the appellant's challenge was not successful. The court also held that the appellant had not established any grounds for quashing the permit and that the respondent's decision was not procedurally unfair. The costs order reflected the outcome of the proceedings and the relative success of the parties.

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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