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[2001] NSWLEC 183
Land and Environment Court (NSW)
1997-07-02
Cowdroy J, Mr J
Original judgment source is linked above.
The application before the Court required the applicants to establish that the council's decision was 'unreasonable' within the principle established in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The initial Tricend reports did not deal with possible contamination by arsenic and lead, and were not acceptable to council. However such deficiencies were subsequently rectified by the later reports.
In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Gleeson CJ and McHugh J said at 626:- Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as 'illogical' or 'unreasonable,' or even 'so unreasonable that no reasonable person could adopt it'. If these are merely emphatic ways of saying that the reasoning is wrong then they may have no particular legal consequence.
The limits of the power of a court of judicial review have been clearly stated by Mason J in Peko Wallsend where His Honour said at 40-41:- The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on that discretion and a decision made within those boundaries cannot be impugned: Wednesbury Corporation .
It follows that in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty Ltd v McKellar (1981) 38 ALR at p375; Reg v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at p205; Elliott v Southwark London Borough Council [1976] 1 WLR 499 at p507; [1976] 2 All ER 781 at p788; Pickwell v Camden London Borough Council [1983] QB 962 at p990 .
Based upon the Tricend reports, Mr Hogan's knowledge of the site and Mr Kennedy's experience, council was entitled to regard condition C6 as having been satisfied. The resolution was made in the face of serious contention concerning alleged contamination of the site and litigation which was resolved in favour of the council. The evidence of the applicants does not establish that the council acted unreasonably in adopting the resolution.
The applicants claim that Mr Kennedy was compromised since he was a director in a company known as BBCL Pty Ltd which was involved in the development on the subject site.
BBCL Pty Ltd changed its name to CBCL Pty Ltd on 15 April 1999. On that date two shares were issued in CBCL Pty Ltd. One share was issued to Gregory Robert Ross and the other to Alan Kennedy, each for a consideration of $1.00. Mr Ross in fact paid for both shares.
CBCL Pty Ltd purchased the site from the first respondent by agreement dated 1 December 1999 and held the land as a trustee for a unit trust. Mr Kennedy has no beneficial interest in the unit trust or in any share held in the company. He was not a beneficial shareholder and his involvement in such company took place in consequence of his appointment as project manager for the development.
It has not been established that the council has been compromised because of Mr Kennedy's association with the owner of the land. The fact that Mr Kennedy was appointed project manager does not lead to the result that he was not competent to perform his professional role, nor that he or the council have colluded to achieve the satisfaction of condition C6.
It should also be observed that the site was transferred by Dudley Pastoral Co Pty Limited (the first respondent) to CBCL Pty Ltd on 1 December 1999. Accordingly any interest of the first respondent in the land ceased on that date and no order can be made against it which requires any action in respect of the site. Further since CBCL Pty Ltd is not a respondent no orders can be made against that company which affect the land.
The applicants have submitted that the council have acted in bad faith by adopting the resolution. No evidence has been adduced which would support such a serious allegation.
In view of the above findings the applicants have not established any claim for relief.
The court orders that:- 1) the application be dismissed. 2) costs be reserved. 3) the exhibits be returned.
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Fast Buck$ & Anor
Dudley Pastoral Co Pty Limited & Anor
CITATION : Fast Buck$ & Anor v Dudley Pastoral Co Pty Limited & Anor [2001] NSWLEC 183 revised - 6/09/2001 APPLICANT Fast Buck$ & Anor PARTIES : RESPONDENT Dudley Pastoral Co Pty Limited & Anor FILE NUMBER(S) : 40064 of 2000 CORAM: Cowdroy J KEY ISSUES: Development Consent - Judicial Review :- Whether council decision unreasonable
(1999) 197 CLR 611
(1965) 113 CLR 177