Toth v Campbelltown City Council - [2003] NSWLEC 167

Reported Decision: (2003) 127 LGERA 1

Land and Environment Court

of New South Wales

CITATION: Toth v Campbelltown City Council [2003] NSWLEC 167

PARTIES:
APPLICANT
Tim Toth
RESPONDENT
Campbelltown City Council

FILE NUMBER(S): 10896 of 2001

CORAM: Pain J

KEY ISSUES: Appeal :- s 56A appeal - whether Commissioner erred by failing to take into account submissions that the plan making process of DCP 122 were flawed and that DCP 122 should be given no weight - whether Commissioner erred by failing to determine all matters in controversy between the parties - whether Commissioner erred by failing to give reasons for all issues identified for determination

LEGISLATION CITED: Campbelltown Development Control Plan No 122 cl 9, cl 12
Environmental Planning and Assessment Act 1979 s 79C
Land and Environment Court Act 1979 s 22, s 56A

CASES CITED: Brimbella Pty Ltd v Mosman Municipal Council (1993) 79 LGERA 367;
Flevaris v Hurstville City Council (Lloyd J, NSWLEC, 7 August 1998, unreported);
Hoskins v Waverley Council [1999] NSWLEC 236;
Russo v Kogarah Council (1995) 86 LGERA 300;
Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451;
Yates Property Corporation Pty Ltd (in liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156

DATES OF HEARING: 29/10/2002

DATE OF JUDGMENT:
10/30/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Newport (barrister)
SOLICITORS
Lansley Lawyers
RESPONDENT
Mr AM Pickles (barrister)
SOLICITORS
Abbott Tout

JUDGMENT:

10896 of 2001

Pain J

30 October 2002

TIM TOTH

Applicant

CAMPBELLTOWN CITY COUNCIL

Respondent

Judgment

1. This is an appeal by the Applicant under s 56A of the Land and Environment Court Act 1979 (the Court Act) in relation to a decision of Commissioner Brown on 17 May 2002 refusing consent to DA E57/2001. I note there was an agreed statement of facts.

Applicant’s grounds
2. The Applicant alleges three grounds of error in the Commissioner’s decision:
(i) The Court erred in law in failing to take into account the submission that the statutory steps taken in the making of DCP 122 were flawed and that such plan should be given no weight at all.
(ii) Alternatively the Court erred in law in failing to determine all matters in controversy between the parties.
(iii) Alternatively the Court erred in law in failing to give reasons as to findings of fact or law on the relevant issues identified in (i) and (ii) above and raised for determination in the proceedings of whether a determination was made or not made and the reasons therefore.

Applicant's arguments
3. The Applicant’s main argument in ground (i) is that the Commissioner did not consider the submissions or did not appear to consider the submissions made by the Applicant regarding cl 9 and 12 of Development Control Plan No 122 (DCP 122), namely that because of flaws in the plan-making process the Court ought to give little or no weight to DCP 122. If the Commissioner did consider DCP 122,…

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: [2003] NSWLEC 167
Decision Date: 10/30/2002

CaseChat Overview and Summary

In the case of Toth v Campbelltown City Council, Tim Toth, the applicant, appealed against a decision of Commissioner Brown, who had refused consent to a development application. The appeal was brought under section 56A of the Land and Environment Court Act 1979. The applicant raised three grounds of error, focusing on the Commissioner's failure to consider the flawed plan-making process of Development Control Plan No 122 (DCP 122) and the Commissioner's omission to determine all matters in controversy between the parties and to provide reasons for his findings. The applicant argued that these errors materially affected the decision and should result in the appeal being upheld.

The court considered the applicant's arguments, noting that the issue of flaws in the plan-making process of DCP 122 was effectively a challenge to the validity of the plan, which had not been pursued by the applicant. The court found that the differences between the Local Environment Plan (LEP) and DCP 122, as considered in previous cases, were not of the same character as the alleged flaws in the plan-making process. The court held that the Commissioner did not err in law by not giving weight to the applicant's submissions regarding DCP 122 and that there was no duty on the Commissioner to determine all matters in controversy between the parties. Furthermore, the court held that in the absence of a duty to determine a question of law, there was no obligation on the Commissioner to give reasons for his findings.

The court concluded that even if the Commissioner had erred in law, it would not have materially affected the decision. The court dismissed the appeal, finding that the Commissioner's decision should be viewed as a whole and that the errors alleged by the applicant did not vitiate the Commissioner's decision. The court also ordered that the applicant's s 56A appeal was dismissed and that the applicant was to pay the respondent's costs, with the order stayed for seven days to allow the parties to apply to vary the order if they wished.

Orders