Townsend v Evans Shire Council - [2000] NSWLEC 163

Land and Environment Court

of New South Wales

CITATION: Townsend & Anor v Evans Shire Council & Ors [2000] NSWLEC 163

PARTIES:
APPLICANTS:
Colin William Townsend and Mary-Rose Townsend
FIRST RESPONDENT:
Evans Shire Council
SECOND RESPONDENTS:
John Anthony Brennan and Judith Brennan

FILE NUMBER(S): 40011 of 2000

CORAM: Lloyd J

KEY ISSUES:
Judicial Review :- validity of council resolution to give consent for subdivision of concessional allotment - informal notification by mayor after meeting - subsequent resolution to rescind consent - whether sufficient notification to invalidate rescission - rescission motion valid - whether subsequent resolution consenting to subdivision of concessional allotment valid
Construction & Interpretation: - "existing holding"

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 80, s 81
Environmental Planning and Assessment Regulation 1994 cl 68A, cl 69
Local Government Act 1993 s 372

CASES CITED: Ex parte Renouf (1924) 24 SR (NSW) 463;
Fencott Drive Pty Ltd v Lake Macquarie City Council [2000] NSWLEC 146;
Panagopoulos v Willoughby City Council (1992) 78 LGERA 270;
Shanahan v Strathfield Municipal Council [1993] 2 NSWLR 740

DATES OF HEARING: 17/07/2000

DATE OF JUDGMENT:
08/17/2000

LEGAL REPRESENTATIVES:

APPLICANTS:
T F Robertson (Barrister)
SOLICITORS:
Booth Brown Samuels & Olney
FIRST RESPONDENT:
P R Clay (Barrister)
SOLICITORS:
McIntosh, McPhillamy & Co
SECOND RESPONDENTS:
N/A
SOLICITORS:
McPhee Kelshaw

JUDGMENT:

IN THE LAND AND Matter No: 40011 of 2000

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 17 August 2000

Colin William Townsend and Mary-Rose Townsend

Applicants

Evans Shire Council

First Respondent

John Anthony Brennan and Judith Brennan

Second Respondents

REASONS FOR JUDGMENT

1. The applicants, Mr C W and Mrs M R Townsend claim a declaration that a development consent granted by the first respondent, Evans Shire Council (“the council”) to the second respondents, Mr J A and Mrs J Brennan, on 1 October 1999 for a two-lot subdivision of land is invalid. The applicants also claim a declaration that a resolution of the council on 1 October 1999 rescinding a previous development consent for a two-lot subdivision which it had granted to the applicants on 6 September 1999 is invalid. The applicants seek orders setting aside the consent granted to Mr and Mrs Brennan and setting aside the resolution of 1 October of 1999. The second respondents, Mr and Mrs Brennan, have entered a submitting appearance, save as to costs.

The facts

2. The applicants are the owners of the property known as “Willow Vale”, Evans Plains, comprising about four hundred (400) hectares. That property was an existing holding, a term defined by Interim Development Order No.1- Shire of Evans (“the IDO”). Previously “Willow Vale” included an area of about forty (40) hectares now owned by Mr and Mrs Brennan and presently known as “Willow Grove”. In 1980, in reliance upon clause 15 of the IDO, Mr Townsend obtained consent from the council to create two (2) concessional allotments, one of which is now “Willow Grove”. As the area of the existing holding, “Willow Vale”, was more…

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: [2000] NSWLEC 163
Decision Date: 08/17/2000

CaseChat Overview and Summary

In the Land and Environment Court, the applicants, Colin William and Mary-Rose Townsend, sought a declaration that a development consent granted by Evans Shire Council to John Anthony and Judith Brennan for a two-lot subdivision of their property was invalid. Additionally, the applicants sought a declaration that a subsequent resolution of the council to rescind a previous consent granted to them was also invalid. The applicants sought orders to set aside both the consent granted to the Brennans and the resolution to rescind the earlier consent.

The key legal issues in the case were whether the council's resolution to rescind the initial consent granted to the Townsends was valid and whether the subsequent consent granted to the Brennans was valid. The court had to interpret the terms of the relevant legislation, particularly the definition of "existing holding" and the authority for the council to grant consent for subdivision. The applicants argued that the Brennans' property did not have a concessional lot entitlement and that the council's rescission of the consent to the Townsends was invalid. The council contended that "Willow Grove" was part of an existing holding and that the council had the authority to rescind its decision before formally notifying the applicants.

The court found that the submissions of the applicants' counsel were to be preferred. The entitlement to create a concessional allotment attached to an existing holding, and the land known as "Willow Grove" could not be considered an existing holding. Consequently, the Brennans' property did not have a concessional lot entitlement. The court held that the council had the inherent power to reconsider its determination before notifying the applicant, and the legislation did not prevent such reconsideration. The rescission motion was lodged within the permitted timeframe, and the council was not required to issue a notice of determination pending the outcome of the rescission motion.

The court concluded that the declaration sought by the applicants regarding the invalidity of the consent granted to the Brennans should be made, and the declaration regarding the invalidity of the council's resolution to rescind the consent to the Townsends should be refused. The consent granted to the Brennans was set aside, and the question of costs was reserved.

Orders