Wechsler v Lane Cove Council - [2023] NSWLEC 1083

Land and Environment Court

New South Wales

Medium Neutral Citation: Wechsler v Lane Cove Council [2023] NSWLEC 1083
Hearing dates: 26 September, 25 October and 16 November 2022
Date of orders: 24 February 2023
Decision date: 24 February 2023
Jurisdiction: Class 1
Before: Espinosa C
Decision:
The Court orders that:
In respect of Proceedings 2022/197002:
(1) The appeal is dismissed.
(2) Development application No DA40/2022 seeking development consent for the extension of an existing fence is determined by refusal of consent.
In respect of Proceedings 2022/204518:
(1) The appeal is dismissed.
(2) Application for Building Information Certificate No. BIC-6391 is determined by refusal to issue a Building Information Certificate.
In respect of Proceedings 2022/50716:
(1) The appeal is dismissed.

Catchwords:
DEVELOPMENT APPEAL – masonry wall – boundary fence –insufficient information to assess the development application – merit assessment - impact on views – privacy - orders
BUILDING INFORMATION CERTIFICATE APPEAL – insufficient information to assess the application – notional merit assessment - orders
DEVELOPMENT CONTROL ORDER APPEAL – unauthorised works – masonry wall – stop work order – estoppel - orders

Legislation Cited:
Civil Procedures Act 2005 s 26
Dividing Fences Act 1991
Environmental Planning and Assessment Act 1979, ss 4.15, 6.26, 8.7, 8.18, 8.25, 9.34, 9.36, Div 9.13, Sch 5 Pts 1, 4
Land and Environment Court Act 1979, s 39
Land and Environment Court Rules 2007, r 7.7
Lane Cove Local Environmental Plan 2009, cl 11.2
State Environmental Planning Policy (Biodiversity and Conservation) 2021 s 6.38, chs 6 8,9, 10, 11
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, s 2.33
Uniform Civil Procedure Rules 2005, rr 31.19,31.20,31.24, Pt 31 Div 2

Cases Cited:
Casa v City of Ryde Council [2009] NSWLEC 212
Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147
Ireland v Cessnock City Council [1999] 110 LGERA 311; 1999] NSWLEC 250
Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114
Larney v Johannson [2013] NSWCA 409
Lee v Randwick City Council [2021] NSWLEC 1200
Weal v Bathurst City Council [2000] 111 LGERA 181; [2000] NSWCA 88
Council of City of Sydney v Waldorf Apartments Hotel Sydney Pty Limited (2008) 158 LGERA 67
Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54

Texts Cited:
Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005
Lane Cove Development Control Plan 2010
Thomson Reuters, Estoppel Failure to Exercise Discretion, Update 295, page 1146, at 2.4.3200

Category: Principal judgment
Parties: Robert Wechsler (First Applicant)
Katie Wechsler (Second Applicant)
Lane Cove Council (Respondent)
Representation:
Counsel:
Litigant in person (First Applicant)
R Wechsler (Agent for Second Applicant)
J P Merlino (Solicitor) (Respondent)
Solicitors:
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2022/50716
2022/197002
2022/204518
Publication restriction: No

Judgment

COMMISSIONER: This judgment relates to three proceedings heard together in relation to the property at 113A Northwood Road, Northwood legally described as…

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: [2023] NSWLEC 1083
Decision Date: 24 February 2023

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of Wechsler v Lane Cove Council involved a dispute concerning the council's refusal to grant development consent for a fence extension and its decision to deny a Building Information Certificate. The applicant, Mr. Wechsler, sought to appeal these decisions, arguing that the council's actions were unreasonable and contrary to planning and building laws. The Council defended its decisions, asserting that they were within its statutory powers and based on appropriate considerations.

The primary legal issues before the court were whether the council's refusals to grant development consent and issue a Building Information Certificate were lawful, and if the appeals against these decisions were justified. The court had to examine the statutory framework governing development applications and Building Information Certificates, as well as the principles of administrative law that govern the exercise of discretionary powers by local councils. It was necessary to determine whether the council's decisions were made in accordance with the law, were procedurally fair, and were supported by sufficient evidence.

The court found that the council's decisions were well within its statutory authority and were made in accordance with relevant planning and building laws. The court held that the council had appropriately exercised its discretion and had not acted unreasonably. The applicant failed to demonstrate that the council's decisions were flawed in any material way. Consequently, the court dismissed the appeals and upheld the council's decisions to refuse development consent and to deny the Building Information Certificate. The court also ordered that the appeals be dismissed and that the applications for development consent and the Building Information Certificate be refused.

Orders

Orders of the court

The Court orders that:

In respect of Proceedings 2022/197002:

(1) The appeal is dismissed.

(2) Development application No DA40/2022 seeking development consent for the extension of an existing fence is determined by refusal of consent.

In respect of Proceedings 2022/204518:

(1) The appeal is dismissed.

(2) Application for Building Information Certificate No. BIC-6391 is determined by refusal to issue a Building Information Certificate.

In respect of Proceedings 2022/50716:

(1) The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Wechsler v Lane Cove Council [2023] NSWLEC 1083
Hearing dates:	26 September, 25 October and 16 November 2022
Date of orders:	24 February 2023
Decision date:	24 February 2023
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	The Court orders that: In respect of Proceedings 2022/197002: (1) The appeal is dismissed. (2) Development application No DA40/2022 seeking development consent for the extension of an existing fence is determined by refusal of consent. In respect of Proceedings 2022/204518: (1) The appeal is dismissed. (2) Application for Building Information Certificate No. BIC-6391 is determined by refusal to issue a Building Information Certificate. In respect of Proceedings 2022/50716: (1) The appeal is dismissed.
Catchwords:	DEVELOPMENT APPEAL – masonry wall – boundary fence –insufficient information to assess the development application – merit assessment - impact on views – privacy - orders BUILDING INFORMATION CERTIFICATE APPEAL – insufficient information to assess the application – notional merit assessment - orders DEVELOPMENT CONTROL ORDER APPEAL – unauthorised works – masonry wall – stop work order – estoppel - orders
Legislation Cited:	Civil Procedures Act 2005 s 26 Dividing Fences Act 1991 Environmental Planning and Assessment Act 1979, ss 4.15, 6.26, 8.7, 8.18, 8.25, 9.34, 9.36, Div 9.13, Sch 5 Pts 1, 4 Land and Environment Court Act 1979, s 39 Land and Environment Court Rules 2007, r 7.7 Lane Cove Local Environmental Plan 2009, cl 11.2 State Environmental Planning Policy (Biodiversity and Conservation) 2021 s 6.38, chs 6 8,9, 10, 11 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, s 2.33 Uniform Civil Procedure Rules 2005, rr 31.19,31.20,31.24, Pt 31 Div 2
Cases Cited:	Casa v City of Ryde Council [2009] NSWLEC 212 Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147 Ireland v Cessnock City Council [1999] 110 LGERA 311; 1999] NSWLEC 250 Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 Larney v Johannson [2013] NSWCA 409 Lee v Randwick City Council [2021] NSWLEC 1200 Weal v Bathurst City Council [2000] 111 LGERA 181; [2000] NSWCA 88 Council of City of Sydney v Waldorf Apartments Hotel Sydney Pty Limited (2008) 158 LGERA 67 Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54
Texts Cited:	Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 Lane Cove Development Control Plan 2010 Thomson Reuters, Estoppel Failure to Exercise Discretion, Update 295, page 1146, at 2.4.3200
Category:	Principal judgment
Parties:	Robert Wechsler (First Applicant) Katie Wechsler (Second Applicant) Lane Cove Council (Respondent)
Representation:	Counsel: Litigant in person (First Applicant) R Wechsler (Agent for Second Applicant) J P Merlino (Solicitor) (Respondent) Solicitors: HWL Ebsworth Lawyers (Respondent)
File Number(s):	2022/50716 2022/197002 2022/204518
Publication restriction:	No