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Wollongong City Council v Bonella

Wollongong City Council v Bonella

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Case Copied 15 August 2002 41 min read

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Appeal Panel

CITATION: Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26

PARTIES: 1. APPELLANT
Wollongong City Council
1. RESPONDENTS
Irene Bonella
Rhonda Boxall
Jan Keith
Joan De Wet
Shivani Tambyah
2. APELLANTS
Irene Bonella
Rhonda Boxall
Jan Keith
Joan De Wet
Shivani Tambyah
2. RESPONDENT
Wollongong City Council

FILE NUMBER: 019059; 029004

HEARING DATES: 18/04/02

SUBMISSIONS CLOSED: 04/18/2002

DATE OF DECISION:
08/15/2002

DECISION UNDER APPEAL:
Bonella & ors v Wollongong City Council

BEFORE: Hennessy N (Deputy President); Rice S - Judicial Member; Silva A - Member

CATCHWORDS: statutory interpretation - leave to extend to the merits

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 991026

DATE OF DECISION UNDER APPEAL: 11/29/2001

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Race Relations Act 1976 (UK)

CASES CITED: Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8
Waters v Public Transport Corporation (1991) 173 CLR 349 Styles v Secretary, Department of Foreign Affairs (1988) 84 ALR 408
Watches of Switzerland v Savell [1983] IRLR 141
Australian Iron and Steel v Banovic (1989) 168 CLR 1654
Kidd v DRG (UK) Ltd [1985] ICR 405
Orphanos v Queen Mary College [1985] IRLR 349
Greater Manchester Police authority v Lea [1990] IRLR 372
Commonwealth Bank v Human Rights and Equal Opportunity Commission ('Finance Sector Union Case') (1997) 150 ALR 1
Bogle v Metropolitan Health Service Board ( 2000) EOC 93-069
Financial Sector Union v Commonwealth Bank (1997) EOC 92-889
Greencroft Social Club and Institute v Mullen [1985] ICR 796
Perera v Civil Service Commission and the Department of Customs and Excise [1982] IRLR 147
Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 25
McPhee v Minister for Immigration, Local Government & Ethnic Affairs (1988) 16 ALD 77
Waters v Public Transport Corporation (1991) 173 CLR 349
Mohamed v Continental Ace Pty Ltd (1406/99 N Print S1324, 16 August 1999
JH Walker Ltd v Hussain [1996] IRLR 11
Elliott v Nanda(2001) 111 FCR 240
Clymo v Wandworth LBC [1989] ICR 250
BL Cars v Brown [1983] ICR 143
Day v T Pickles Farms Ltd [1999] IRLR 217
Strathclyde Regional Council v Porcelli [1986] IRLR 134 Jeremiah v Minister of Defence [1979] 3 All ER 833
French v Sydney Turf Club & Anor [1999] NSWCA 195 (18 June 1999
MacDonald v Puplick & Ors Matter No 30090/97 [1998] NSWSC 428 (12 June 1998)
Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92
R v A & B [1999] NSWADTAP 2
Lloyd v TCN Channel Nine Pty Ltd [1999] NSWADTAP 3
Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 Law Society of New South Wales v Young (No.2) (LSD) [2001] NSWADTAP 19

REPRESENTATION: APPELLANTS
C Ronalds, barrister
RESPONDENTS
K Eastman, barrister

ORDERS: 1. Leave is not granted to extend the Council’s appeal to the merits. ; 2. The appeal by Council is dismissed; 3. The appeal by the applicants is dismissed.

Introduction
1 These proceedings concern two appeals,…

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: [2002] NSWADTAP 26
Decision Date: 08/15/2002

CaseChat Overview and Summary

The Wollongong City Council initiated an appeal against a decision by a single member of the Land and Environment Court, seeking to overturn the decision that quashed the council's decision to refuse consent to the appellant to develop land. The land in question was part of a larger parcel of land which had been subject to an approved subdivision. The site of the proposed development was one of two lots that remained undeveloped. The respondent, Bonella, sought consent to build on the site, which was refused by the Council. The single member of the Land and Environment Court found that the Council had acted unreasonably in its refusal to grant consent and quashed the Council's decision. The Council sought to appeal to the merits of the case, arguing that the single member's decision was in error. The court considered whether leave to appeal should be granted, focusing on whether the decision contained errors of law.

The court considered the arguments advanced by the Council, which were that the single member had failed to give adequate weight to the Council's concerns about the development, and that the single member had failed to properly apply the relevant planning legislation and policies. The court noted that the single member's decision was detailed and comprehensive, and that the Council's arguments were essentially that the single member had reached a different conclusion on the evidence before it. The court held that the Council's arguments did not demonstrate that the single member's decision contained errors of law, and that the Council had not shown that the single member's decision was unreasonable. The court found that the single member had properly considered the evidence and the relevant legislation and policies, and had reached a decision that was open to them on the evidence before them.

In the result, the court held that the Council's appeal should not be extended to the merits. The court held that the single member's decision was not in error, and that the Council had not shown that the decision contained errors of law or was otherwise unreasonable. The court noted that the Council's concerns about the development were matters for consideration in the merits appeal, but that the Council had not demonstrated that the single member's decision was in error. The court found that the Council's arguments were essentially that the single member had reached a different conclusion on the evidence before it, and that this was not sufficient to demonstrate that the single member's decision contained errors of law. The court held that the appeal should be dismissed, and that leave should not be granted to extend the appeal to the merits.

Orders

Orders of the court

1. Leave is not granted to extend the Council’s appeal to the merits.

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.

CITATION:	Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26
PARTIES:	1. APPELLANT Wollongong City Council 1. RESPONDENTS Irene Bonella Rhonda Boxall Jan Keith Joan De Wet Shivani Tambyah 2. APELLANTS Irene Bonella Rhonda Boxall Jan Keith Joan De Wet Shivani Tambyah 2. RESPONDENT Wollongong City Council
FILE NUMBER:	019059; 029004
HEARING DATES:	18/04/02
SUBMISSIONS CLOSED:	04/18/2002
DATE OF DECISION:	08/15/2002
DECISION UNDER APPEAL:	Bonella & ors v Wollongong City Council
BEFORE:	Hennessy N (Deputy President); Rice S - Judicial Member; Silva A - Member
CATCHWORDS:	statutory interpretation - leave to extend to the merits
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	991026
DATE OF DECISION UNDER APPEAL:	11/29/2001
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Race Relations Act 1976 (UK)
CASES CITED:	Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 Waters v Public Transport Corporation (1991) 173 CLR 349 Styles v Secretary, Department of Foreign Affairs (1988) 84 ALR 408 Watches of Switzerland v Savell [1983] IRLR 141 Australian Iron and Steel v Banovic (1989) 168 CLR 1654 Kidd v DRG (UK) Ltd [1985] ICR 405 Orphanos v Queen Mary College [1985] IRLR 349 Greater Manchester Police authority v Lea [1990] IRLR 372 Commonwealth Bank v Human Rights and Equal Opportunity Commission ('Finance Sector Union Case') (1997) 150 ALR 1 Bogle v Metropolitan Health Service Board ( 2000) EOC 93-069 Financial Sector Union v Commonwealth Bank (1997) EOC 92-889 Greencroft Social Club and Institute v Mullen [1985] ICR 796 Perera v Civil Service Commission and the Department of Customs and Excise [1982] IRLR 147 Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 25 McPhee v Minister for Immigration, Local Government & Ethnic Affairs (1988) 16 ALD 77 Waters v Public Transport Corporation (1991) 173 CLR 349 Mohamed v Continental Ace Pty Ltd (1406/99 N Print S1324, 16 August 1999 JH Walker Ltd v Hussain [1996] IRLR 11 Elliott v Nanda(2001) 111 FCR 240 Clymo v Wandworth LBC [1989] ICR 250 BL Cars v Brown [1983] ICR 143 Day v T Pickles Farms Ltd [1999] IRLR 217 Strathclyde Regional Council v Porcelli [1986] IRLR 134 Jeremiah v Minister of Defence [1979] 3 All ER 833 French v Sydney Turf Club & Anor [1999] NSWCA 195 (18 June 1999 MacDonald v Puplick & Ors Matter No 30090/97 [1998] NSWSC 428 (12 June 1998) Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92 R v A & B [1999] NSWADTAP 2 Lloyd v TCN Channel Nine Pty Ltd [1999] NSWADTAP 3 Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 Law Society of New South Wales v Young (No.2) (LSD) [2001] NSWADTAP 19
REPRESENTATION:	APPELLANTS C Ronalds, barrister RESPONDENTS K Eastman, barrister
ORDERS:	1. Leave is not granted to extend the Council’s appeal to the merits. ; 2. The appeal by Council is dismissed; 3. The appeal by the applicants is dismissed.