Legal Research
Cases
Walsh v Parramatta City Council

Walsh v Parramatta City Council

Link copied

Case Copied 8 May 2007 34 min read

Contents

On this page

Reported Decision: (2007) 161 LGERA 118

Land and Environment Court

of New South Wales

CITATION: Walsh v Parramatta City Council and Alam [2007] NSWLEC 255
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Colin Thomas Walsh
FIRST RESPONDENT
Parramatta City Council
SECOND RESPONDENT
Elie Alam

FILE NUMBER(S): 40272 of 2006

CORAM: Preston CJ

KEY ISSUES: Judicial Review :- development consent - alleged breach of development standards for height and floorspace ratio - alleged failure to consider overshadowing - alleged failure to consider disabled access

LEGISLATION CITED: Disability Discrimination Act 1992 (Cth) s 79C(1)(a)

CASES CITED: Abebe v Commonwealth of Australia (1999) 197 CLR 510;
Akpan v Minister for Immigration Ethnic Affairs (1982) 58 FLR 47;
Bruce v Cole (1998) 45 NSWLR 163;
Brunetto v Collector of Customs (1984) 4 fcr 92;
Buresti v Beveridge (1990) 158 ALR 445;
Elliott v Southwark London Borough Council [1976] 1 WLR 499;
Gidaro v Secretary Department of Social Security (1988) 154 ALR 550;
Foster v Minister for Customs (2000) 200 CLR 442;
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277;
Makhoul v Parramatta City Council [2006] NSWLEC 386 (21 June 2006);
Minister for Immigration and Multi-Cultural Affairs v Yusuf (2001) 206 CLR 323;
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259;
Noble v Cowra Shire Council (2001) 114 LGERA 440;
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228;
Randwick Municipal Council v Manousaki (1988) 66 LGRA 330;
Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1;
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363;
Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING: 03/10/2006, 04/10/2006, 05/10/2006, 06/10/2006; MENTIONS: 07/02/2007, 19/02/2007, 05/03/2007, 30/04/2007

DATE OF JUDGMENT:
8 May 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Johnson (barrister)
SOLICITORS
James Soulos
FIRST RESPONDENT
Submitting appearance
SECOND RESPONDENT
Mr T O Bland (barrister)
SOLICITORS
R M Legal

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

8 MAY 2007

40272 OF 2006

WALSH V PARRAMATTA CITY COUNCIL and ALAM

JUDGMENT

1 HIS HONOUR: Mr Walsh lives in a single storey house at 126 Bettington Road, Oatland. Dr Alam is his neighbour to the north, at 128 Bettington Road, Oatland. Dr Alam wishes to redevelop his property by erecting a double storey dwelling. Mr Walsh is opposed to the new dwelling. He says it will impact significantly on the use and enjoyment of his property. Dr Alam sought and eventually was granted by Parramatta City Council development consent to erect the new dwelling. Mr Walsh has brought proceedings to challenge the validity of the development consent.

The development application and its determination

2 On 14 November 2004, Dr Alam lodged a development application with the Council, being the relevant consent authority, seeking development…

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.

Keep reading for free

Create a free CaseChat account to read Walsh v Parramatta City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWLEC 255
Decision Date: 8 May 2007

CaseChat Overview and Summary

Colin Thomas Walsh sought a judicial review of a determination by Parramatta City Council to grant Dr Elie Alam development consent for a double storey residential dwelling. Walsh claimed the Council’s decision was invalid on four grounds: the dwelling exceeded the height and floorspace ratio standards in the Parramatta Local Environmental Plan; the Council failed to consider the impact of overshadowing; and the Council failed to consider the impact of the driveway on disabled access. The court rejected all four grounds of challenge. The court held that the dwelling complied with the height and floorspace ratio standards. It found the Council had considered the issue of overshadowing, including the impact on specific habitable rooms and the relevant setback controls. Finally, the court held that the Council was not required to consider the impact of the driveway on disabled access. The court dismissed Walsh’s challenge and ordered him to pay Alam’s costs.

Orders