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Young v Parramatta City Council

Young v Parramatta City Council

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Case Copied 28 February 2006 32 min read

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Land and Environment Court

of New South Wales

CITATION: Greg Young v Parramatta City Council [2006] NSWLEC 116

PARTIES:
APPLICANT
Greg Young
RESPONDENT
Parramatta City Council

FILE NUMBER(S): (1)0279 of 2002

CORAM: Jagot J

KEY ISSUES: Practice and Procedure :- Preliminary questions - where appropriate; Whether satisfied that development as modified would be substantially the same development - question of fact not law - generally not suitable for separate or preliminary determination on a merits appeal; Development proposed to be modified by subdivision - not satisfied that development as modified would be substantially the same development

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 4(1), s 4B, s 96(2), s 96(6)
Land and Environment Court Act 1979 s 39(2)
Land and Environment Court Rules 1996 Pt 1 r5A, Pt 6 r 1, s 39(2), Pt 16 r 4
State Environmental Planning Policy No 5, Housing for Older People or People with a Disability cl 18
Supreme Court Rules 1970 Pt 31 r 2

CASES CITED: Ben-Menashe v Ku-ring-gai Municipal Council (2001) 115 LGERA 181;
Blair v Curran (1939) 62 CLR 464;
Comcare v Grimes (1994) 50 FCR 60;
Commonwealth v Sciacca (1988) 17 FCR 476;
Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002;
Fernance Family Holdings Pty Ltd v Newcastle City Council (2000) 110 LGERA 67;
Grant v Kiama Municipal Council [2006] NSWLEC 70;
Hillpalm Pty Limited v Heaven’s Door Pty Limited (2004) 220 CLR 472;
Lambidis v Commissioner of Police (1995) 37 NSWLR 320;
Lean v Ku-ring-gai Council [1998] NSWLEC 226;
Masterton Homes Pty Ltd v Pittwater Council (2003) 124 LGERA 216;
McLoughlin v Jones [2002] 2 WLR 1279;
Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57;
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; 39 ALR 649; 61 FLR 354 at 359;
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193;
Mirvac Homes Pty Ltd v Parramatta City Council (2000) 111 LGERA 233;
Monnock v Pittwater Council (2003) 127 LGERA 66;
Moto Projects No 2 Pty Ltd v North Sydney Council (1999) 106 LGERA 298;
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468;
1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685;
Russo v Kogarah Municipal Council (1999) 105 LGERA 290 ;
Save the Ridge Inc v Commonwealth (2005) 142 LGERA 18;
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319;
Sydney City Council v Ilenace Pty Limited (1984) 3 NSWLR 414;
Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130;
Tepko Pty Limited and Others v Water Board (2001) 206 CLR 1;
Vacik Pty Limited v Penrith City Council (unreported, Stein J, 10242 of 1991, 24 February 1992);
Young v Parramatta City Council (2002) 124 LGERA 361

DATES OF HEARING: 28/02/2006

EX…

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: [2006] NSWLEC 116
Decision Date: 02/28/2006

CaseChat Overview and Summary

The Land and Environment Court of New South Wales dealt with an application by Greg Young to modify a development consent granted for alterations and additions to an existing dwelling and for the construction of a new dwelling at 43 Wyralla Avenue, Epping. The Parramatta City Council opposed the application, raising a preliminary question of whether the proposed modification, which sought approval for the Torrens Title subdivision of the land, constituted substantially the same development as that for which the consent was originally granted. The court held that the issue raised by the Council was one of fact rather than law and thus not suitable for separate determination. The court emphasised the importance of resolving all issues simultaneously to ensure just, quick, and cheap resolution of disputes, aligning with the overriding purpose of the Land and Environment Court Rules. The court ultimately found that the proposed modification, involving the subdivision of land, resulted in a development that was radically transformed from the original consent, thus not being substantially the same. Consequently, the appeal was dismissed, and the application to modify the consent was refused. Costs were reserved, and each party was ordered to bear its own costs.

Orders